Young indie dev get's bullied with cease & desist by iNXile for using word "Wasteland" in $1.99 Stea

[zegh8578]

By the way, just to be very nitpicky here - (someone's gotta be)
Copyright is not the issue here, trademark is. I'm sure this is semantics to most, but it's kind of important to remember that - as an artist, ALL your work, no matter how trivial, is automatically protected by copyright! Enforcing this protection is a totally different matter, but copyright, the famous C inside the circle, is YOURS automatically!

Trademark - recognized by the little "tm" in the top corner of logos and brands, is something that you DO register, to a registry, and this is what causes so many problems.
Nobody can copyright a bear, or the word "bear" (as an artist, you are too late to invent/create bears), but someone could try to trademark it, causing problems for everybody who has anything to do with bears

 

[Mr Fish]

So, let's say that InXile didn't enforce it or never got it trademarked or whatever and then some other bigger studio got the trademark for "Wasteland", could that mean that they would be able to shut down future Wasteland projects because it now infringes upon "their" IP/trademark?

I mean, maybe that's all it is. Think of the amount of stuff that Brian and the others lost when InXile went down. Maybe he's a bit overprotective because he doesn't want something that belongs to him/his studio to be snatched away from him again.

And again, from what I read about it InXile doesn't just send C&D's as the first option, they try to find an amicable solution. Only reason why Alien Wasteland is getting a bit more heated was because the ones behind Alien Wasteland didn't appear to want to find a solution to the problem. Then again, this is all based on Bry-bry's perspective so of course it comes with a bias and we don't know if he's a saint of trust.

Still...

I don't feel like this is black and white. I don't like what's happening but if I'm right about what I said in my first two paragraphs then I have to support Brygo's tactics with all of this. If I created something I was really passionate about I wouldn't want some fuckhead of a bigger studio/whatever to send a C&D to me demanding me to alter shit or else face legal action when I created my thing before they did.

 

[AskWazzup]

So, let's say that InXile didn't enforce it or never got it trademarked or whatever and then some other bigger studio got the trademark for "Wasteland", could that mean that they would be able to shut down future Wasteland projects because it now infringes upon "their" IP/trademark?

Yes, but Wasteland and The Alien Wasteland are completely different things. Wasteland is not some specific niche word or symbol either. I would see a point if they had a game that was called "TY789-c" and someone called their game "The TY789 chamber", but in this case it's just some assholish behaviour from inxiles part.

 

[Mr Fish]

Point is, what if someone 'else' trademarked "Wasteland" and then just straight up sent a C&D to InXile when they want to do a Wasteland 3? Maybe this is just pre-emptively(?) taking security measures so that they don't get fucked over by someone else. Like, yeah, it sucks that this is a thing. But would you rather InXile or some other big studio trademark it? Cause it could very well just be an inevitability before some studio trademarked the word "Wasteland" especially considering how popular post-apocalyptic games have been getting in recent years.

And like I said, again, they're trying to find amicable solutions to it. They aren't just tossing Cease N Desists all over the place. They're trying to protect their trademark in a shitty system but they're trying to do it in a way that won't screw over the one's they have to ask to alter their name.

I'm sorry, I just don't see that as assholish.

 

[AskWazzup]

Point is, what if someone 'else' trademarked "Wasteland" and then just straight up sent a C&D to InXile when they want to do a Wasteland 3? Maybe this is just pre-emptively(?) taking security measures so that they don't get fucked over by someone else. Like, yeah, it sucks that this is a thing. But would you rather InXile or some other big studio trademark it? Cause it could very well just be an inevitability before some studio trademarked the word "Wasteland" especially considering how popular post-apocalyptic games have been getting in recent years.

And like I said, again, they're trying to find amicable solutions to it. They aren't just tossing Cease N Desists all over the place. They're trying to protect their trademark in a shitty system but they're trying to do it in a way that won't screw over the one's they have to ask to alter their name.

I'm sorry, I just don't see that as assholish.

They are going after a 1.99$ game dev, with a game name that in no way threatens them.

 

[Mr Fish]

Are you even listening to yourself. You're making them sound like predators out for blood.

http://kotaku.com/indie-shooter-alien-wasteland-hit-with-cease-and-desist-1774541179

“I have been calmly explaining through long emails why we should have no worries about this,” said Devdan. “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.”

inXile confirmed discussions with Devdan on their official forums, and said the intention had been to find “an amicable solution without involving lawyers.”

“The C&D [cease and desist] only happened because the developer was unwilling to recognize the issue,” said associate producer Thomas Beekers. “only offering to change the game’s name if we paid him for it. Asking to be paid for infringing on someone’s rights is certainly a new one for us, so of course we refused.”

This isn’t the first time inXile has butted heads with another developer over the term “wasteland.” In 2013, Vlambeer renamed its roguelikeWasteland Kings to Nuclear Throne, following concerns expressed by inXile. (In 2012, Wasteland 2 had been funded via Kickstarter, making Wasteland a known property again.)

“We’ve been through a lot of trouble with people riding on things of ours, and we understand that American trademark law is pretty strict in that not defending a trademark weakens it,” said Vlambeer co-founder Rami Ismail in a blog post. “We realize that both games are set in a similar setting, that the names are similar and that InXile obviously felt the need to reach out. Although we aren’t sure Wasteland Kings and Wasteland are confusing enough for this to be an issue, both us and InXile really don’t want to spend development time on arguing over trivialities.”


Ismail appreciated inXile reaching out and asking for a change prior to involving lawyers, which appears to have happened with this smaller developer, too.

“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.”

The developer behind Alien Wasteland didn’t respond to my request for comment.

“This is just one of the many headaches in game development,” he wrote in a blog update.

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. This comment is pretty on point:

You want to blame something? Blame the way trademark laws work. Cause all I'm seeing is a studio that wants to see creative work of passion flourish and try to find ways to deal with this trademark system without hurting the other party, resorting to legal action as a very last resort. And if you go "well, InXile doesn't have to deal with this system" I'll simply bring up my earlier point; What if someone else trademarked "Wasteland" simply because they could and started to 'really' bully InXile around because of it? You think that because InXile abstains from this trademark crap that that will somehow fix it? That somehow that means other studio's won't take advantage of it? Won't exploit it?

All I'm seeing is InXile dealing the cards that's been forced on them through this trademark law system as well as the dev behind Alien Wasteland being stubborn and unresponsive.

Again, I want to emphasize that I am not on the choo-choo InXile zealot-train. I don't like that this shit happens either. But if it has to happen then I'd rather it be because of InXile cause at least they appear to want to find ways to solve things amicably in order to help both studios out. And that's way better than other studio's.

 

[Crni Vuk]

Yeah, without the intention to call Xile devils or this small indie dev a saint ... it does beg the question ... why? Sorry if I missed something, but fuck if I am going trough 2 pages of stuff here ... I mean, would Inxile actually lose something if they decided not to bother with a 1,99$ game? LIke, would they lose the rights to Wasteland if they didn't defend the name or something?

 

[Mr Fish]

The way I figure it (and this is just speculation) is that if they let this dev go then another comes along and they let that one go and then that happens a few more times then when some legal shit actually comes up about the trademark the legal court will go "Well, you didn't exactly protect it, if you cared so much about your trademark then why is there a dozen games with similar names?"

But like I said, complete speculation, I don't know anything about the legality of stuff like this.

Anyway, on a different note, I decided to search for "Wasteland" on Steam, you know how many games have "Wasteland" in their titles? 3. Wasteland by InXile, Wasteland Angel by Octane Games and Wasteland Workshop by Bethesda. So. Yeah, it's apparently not that common of a name for games.

 

[Crni Vuk]

But now, you could also ask the question, why they don't write mails also to Wasteland Angel and more importantly Wasteland Workshop by Bethesda, which sounds as ambiguous like Alien Wasteland. And do they plan to also keep this policy in the future? As I am SURE that you will see at some point in the future, other games with the title Wasteland somewhere. Like I said, I am just playing the devils advocate here. And I feel this whole thing is a bit ... silly. But I never quite understood such fights over brands, unless we are talking about something that was made up, or is some kind of combination that didn't exist before. But claiming a name, as common like Wasteland? Man this whole trademark and copyright law thing really needs some changes and reforms in the future ...

The thing is, I thought that it was already ridiciulous from Beth to go over Mojang for using Scrolls with his title, and I think it is, to an lesser extend, just as ridiculous that Inxile gets over this project because of the name Wasteland. No mater how much of an dick the guy was in the discussion later - he really shouldn't have asked for money. I am sure that some people, probably, could confuse those terms and games ... but seriously, about what margin are we talking here? How many people would get that wrong ... definetly not an awfull lot.

 

[Mr Fish]

Wasteland Angel was released in 2011, which was before InXile got Wasteland into the limelight as an IP worth a damn. And as to Wasteland Workshop, is it really any wonder? InXile is tactical but they're not stupid. They're not going after Bethesda because if they went into legal stuff with them then Bethesda could simply draw out the trial somehow over and over again until InXile runs out of money to invest into lawyer fees and shit. This kinda stuff happens with other big corporations.

I also agree that it all feels dumb and pointless and that it is ridiculous that one can even trademark common words. But like I said before, that's the way it works at the moment and until it changes I'd rather InXile not get screwed over by someone like Bethesda in case they want the trademark for "Wasteland".

I don't like this, but at least InXile is trying to work it in everyones benefits whereas IIRC Bethesda simply slapped a cease and desist on Mojang for their "Scrolls"-title. Lesser of evils.

 

[Crni Vuk]

*Shrugs* The lesser devil in my opinion would be to not even bother asking people to change the name of their games, unless we are talking about a fictional name like something totally crazy, which happens to be on your game but also a porn movie using it later. That's in my opinion understandable. But it's not like I understand Inxile, their motivations or what ever.

 

[AskWazzup]

Are you even listening to yourself. You're making them sound like predators out for blood.

No, just asholess. They will not touch bethesda even when their workshop logo has the name and a conveniently familiar character from Wasteland 2. They have already failed to defend their "trademark" or whatever. Pursuing every small dev that use the word wasteland in their game title is just unethical behaviour from them. To be honest Wasteland 2 is not a mainstream enough title for them to claim that someone is riding on its sucess either.

 

[Dr Fallout]

InXile, shame on you.

 

[Snikers]

I know this thread has been dead for months, but since it's on the first page I feel it would be remiss if I didn't point this out:

Alien Wasteland gameplay videos were automatically tagged to Wasteland (1988) by YouTube's sorting system. This means that brand confusion (albeit by an automated system) with InXile's trademark was repeatedly demonstrated by a major entity, which could further confuse people who were not familiar with either product.

You can still see this in the following videos (scroll down to the video information section):











This would suggest InXile had more cause to go after a $1.99 game than simply the word "Wasteland". It was the use of the word in such a way that it could cause brand confusion.