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Bethesda triggers trademark dispute over Fortress Fallout

"Essentially, we're being strong-armed into having to change our name" - BluBlox Games

Bethesda's lawyers are feeling restless again, demanding that an indie developer change the name of their game over an infringement of its Fallout trademark.

BluBox Games had been working on Fortress Fallout with Jordan Maron - a.k.a. prominent YouTuber "CaptainSparklerz" - since August 2014. While BluBox's debut project is a 2D, multiplayer, freemium strategy game, lawyers working on behalf of Bethesda took issue with an application to trademark the title.

According to a letter received by Maron last week, Bethesda's parent company, ZeniMax, believes it would infringe on the trademark for its multimillion-selling, third-person, open-world RPG franchise, Fallout. In a video posted to YouTube, Maron outlined the two choices available to Xreal: stand and fight, or give in, though in reality there is scarcely a choice at all.

"We chatted with our lawyers, and they said, 'Yeah, Bethesda is a notoriously litigious company.' Meaning that they do not hesitate to file a lawsuit against people infringing their trademarks, and they also have lots of money, which I and my partner don't really have at the moment," he said.

"So, essentially, we're being strong-armed into having to change our name... Which is unfortunate, because I personally do not feel that there's any confusion between Fortress Fallout and the Fallout game franchise. I don't believe that people would see Fortress Fallout on the App Store and say, 'Hey, it must be a sequel in the Fallout series.'"

When one considers the Fortress Fallout screenshot below, it's not difficult to see Maron's point.

Maron drew a comparison to a similar situation from 2012 involving Mojang's Scrolls, which ZeniMax claimed would infringe on its Elder Scrolls trademark. In that case, the two companies settled on Mojang keeping the name if it didn't apply for a trademark. However, for Xreal, even that much legal back-and-forth is well beyond its available resources.

"It's pretty silly," Maron concluded, before erupting into mock-applause. "Congratulations Bethesda. You won. You beat us. You exercised your might."

We fully expect that Maron will receive a letter about infringement of the Might & Magic trademark in due course.

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Latest comments (19)

Darren Adams Managing Director, ChaosTrend4 years ago
This is a knee-jerk reaction to the trademark application and in a way there is some merit in what Bethesda are saying. Of course the game doesn't look anything like the Fallout universe and I am pretty sure nobody would draw comparisons between the two. But there is the issue of two trademark holders having a shared word in each would no doubt cause problems down the line if Fortress Fallout was to be a hit.

Hopefully the two parties will work something out amicably, but tbh I can only see one outcome and that is that Jordan Maron will have to drop the trademark in order to keep using the Fortress Fallout name without further legal action.
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Matthew Hardy Studying Multimedia/Game Design, ITT Technical Institute4 years ago
Shameful and disgusting.
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Anthony Gowland Director, Ant Workshop4 years ago
I am pretty sure nobody would draw comparisons between the two
Not when you see them, but when I saw headlines about "Fortress Fallout" I assumed it was some fan-made city builder in the Fallout universe.
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Show all comments (19)
Thomas Dolby Project Manager / Lead Programmer, Ai Solve4 years ago
This is what happens when you allow people to trademark single words in the dictionary.

Edited 1 times. Last edit by Thomas Dolby on 17th February 2015 1:07pm

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Marty Howe Director, Figurehead Studios4 years ago
If i was making a game, and the name was a bit similar to say, one of the biggest franchises in the world.

I would choose a different name. Isn't it obvious.
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Jim Perry Programmer, head geek of indie studio Mach X Games 4 years ago
Isn't it obvious.
No, it's not obvious. It's a ridiculous example of how screwed up our trademark system is that a company can trademark a single, non-specific word and strong-arm other companies into not using it when there's nothing similar between the games. :(

NO ONE with a shred of intelligence is going to mistake Fortress Fallout for a game in the Fallout franchise.
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Andrzej Wroblewski Localization Generalist, Albion Localisations4 years ago
Language cannot be owned. That's against freedom of speech. Even artificially created words cannot be owned after they become commonly used (e.g. xero machine). Everyone who thinks otherwise condones public domain theft.
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Kenny Lynch Community Rep/Moderator 4 years ago
I'm torn on this one myself, as with the preponderance of games called Flappy Angry Candy Mania Blast Bird Birds Saga, and other obvious rip offs to get the game more prominent in a wide swathe of searches in an app store (personally I think stores could do more to stop such games being released with such names) I do think this is an issue that is not dealt with very well in the industry.

That said it does seem kind of a genuine we did not not mean any harm and any confusion would probably be limited... but given that Bethesada is a very litigious company and the developers don't have the money to contest any such litigation, seems a pretty poorly thought name in general. Though I suppose the cynic could just argue that they have just got a free and quite hefty publicity dose, and also have galvanised those that like the underdog and the indie spirit over those big money suits with their high powered lawyers pushing around honest game devs that are the life blood of the industry, why I'm gonna invest in them right now to Bethesada what they can do with their lawyers....ok, maybe not so poorly thought through at all.

@Andrzej, IP should be protected. Don't really understand your argument at all.
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Brook Davidson Artist / 3D design 4 years ago
@Kenny
I believe his point is that it's silly. Just because Bethesda makes some games called Fallout should not mean no one can no longer use that specific word in their game.
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Benjamin Crause Supervisor Central Support, Nintendo of Europe4 years ago
This is simply disgusting. No but no if. Trademarking a single word and then claiming for it in every possible combination is abuse of the trademark system to me. Point.
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James Prendergast Research Chemist 4 years ago
I think I need to trademark the words "dead" and "world". Should set me up for the foreseeable future!
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Doug McFarlane Co-Owner, KodeSource4 years ago
Or the words "the" and "and". Where's the limit?
Can you split it, to make two words?: Fortress Fall Out (or hyphenated?)
or: Fortress All Out, Fortress Fall, or Bethesda Trademark Scum.

I get why we have trademarks. And I understand the need to defend them.
I just don't like when the little guys don't get a say, because of legal costs.
It would be nice if there were a trademark committee to handle these disputes.

Edited 1 times. Last edit by Doug McFarlane on 17th February 2015 9:20pm

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Brook Davidson Artist / 3D design 4 years ago
@Aaron
I would not have any problem with it in particular if they have a 1 and 2. of the game. Though Fortress Half-Life makes no sense as a name. I mean what would that even mean? You do know half-life means the time taken for the radioactivity of a specified isotope to fall to half its original value.

The other issue I find with it, is because half-life as a word doesn't even have many uses. If someone named something properly and it includes half-life in the name, then that is fine. If they put it in the name just to put there, than well they are pretty stupid.

The issue here is the word fallout isn't something rare like that in it's use. The word can apply to tons of games. There obviously needs to be a line drawn with how similar a name can be, but this here is ridiculous. Just as much as them getting in a dispute about the word scrolls. It's absolutely and utterly a bunch of non sense.

Edit: I do have to point out though Fortress half-life may not fly since Valve has 2 titles with similar names Team Fortress and Half-Life. At that point it might be considered blatantly obvious they where doing it on purpose. Even if they where not, I think it's reasonable to Valve to be concerned about it.

Now if someone named their game "Beyond the Half-Life" ... I think that's more reasonable.

Edited 1 times. Last edit by Brook Davidson on 18th February 2015 1:00am

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Neil Young Programmer, Rebellion Developments4 years ago
It's not entirely clear, but it doesn't sound like this is Bethesda stopping anyone using the word "fallout":

"lawyers working on behalf of Bethesda took issue with an application to trademark the title."

It sounds like Bethesda got involved when they tried to trade mark it, I would guess either because the trade mark would have diluted their ability to protect the fallout mark, or because inaction on their part could count against them in future.

I could be wrong, would be interesting to see analysis from an independent trade mark expert.
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Kelly Flock consultant 4 years ago
Reminds me that back in the 1980's Sierra asserted that they owned the rights to the word "Quesf" because of King's Quest et. al. We dropped it from one game just to avoid the legal hassle, After Sierra got rolled up into what eventually became Vivendi the new owners weren't aware of Sierra's Quest obsession and didn't contest it's usage. That's why we were able to confidently brand Everquest.
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Greg Wilcox Creator, Destroy All Fanboys! 4 years ago
Eh, just call it "Medium Speed Rampart-Like Game, Maybe" and be done with it. Little guys should know by now not to even mess with these names that won't confuse anyone but the dopiest gamers in the universe. Who just so happen to be the ones who'd post stuff like "is this a Fallout rip-off?" on message boards. (*unchuckle*)
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Adam Jordan Community Management/Moderation 4 years ago
The trademark market is a shambles at the best of times. It basically allows the big guys to bully (and in some cases, destroy) the little guys.

However while I root for the little guys, it doesn't mean that I don't understand Bethesda's stance. The fact of the matter is, they have an IP solely with the name Fallout, just like EA have an IP called Battlefield (Which is trademarked) so I can understand and see where Bethesda are coming from but there needs to be a way where little guys can come out of this with just their pride wounded and not their careers/company/livelihood shattered

Sure a rename or backing off from a trademark application is the best solution but how long will it be before we see another Langdell situation?

Edited 1 times. Last edit by Adam Jordan on 20th February 2015 10:07am

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Brook Davidson Artist / 3D design 4 years ago
@Adam
I think the trademark rules need to change.
When someone trademarks the name Fallout, it should only apply to the first word used in the title. This means no other company can use the word Fallout in their game title unless it is after another word. Like Fortress Fallout would be ok. Fallout Fortress would not. Other companies also shouldn't be able to use simple words like, "The". So The Fallout would not be acceptable.

Pretty simple rules I think that would work well for most situations and be fair.
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Adam Jordan Community Management/Moderation 4 years ago
@Brook
Agreed and in fact those simple suggestions would make one hell of a difference, especially since "Fortress Fallout" doesn't make me think of a link to "Fallout" however something like "Fallout Fortress" would.

If anything, trademark rules should go with the perception of an average consumer. In fact it would be nice to see a survey done with both gamers and non-gamers to see how many would link certain game titles with certain games/franchises.
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