Womp-wah. The USPTO denied Microsoft a trademark. The technology company tried to register “KILLER INSTINCT” for a yet to be released gaming project, but the United States Patent and Trademark office refused their intellectual property application. Apparently, Fox Television Studios scooped up KILLER INSTINCT first, for a 2005 television program donning the same name.
The Patent & Trademark Office reasoned:
“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.”
So what does that mean in plain English? Essentially, the Patent and Trademark office rationalized that since a video game and a fantasy television show operate in the same commercial sphere (entertainment), the trademarks are confusingly similar and therefore not allowable under United States intellectual property law.
Industry Plays An Important Role When It Comes To Intellectual Property
If Joe’s Chili Shop developed a new hot-sauce and tried to register the trademark KILLER INSTINCT for their product, Joe and co. would probably succeed in securing the trademark. Why? Because the likelihood of confusion is minimal; the two products are unrelated goods/services that use substantially different marketing channels. After all, most people aren’t going to confuse hot sauce with a short-lived television show.
United States trademark laws are essentially designed to protect consumers from market confusion that leads to unfair business practices. Since industry factors play a role in determining confusion, it’s possible to register the same company name as an entity in a different market if the other company is not nationally recognized. Otherwise, it’d be an unfair restraint on trade. To illustrate, an applicant in Arizona who runs a furniture story may be granted a trademark for “Cat’s Corner” even though a publican in New York named Catherine already registered “Cat’s Corner” for her bar.
To read more about other copyright and trademark legal issues, visit the intellectual property section of our legal blog, here. If you’re embroiled in a trademark or copyright legal battle, and could benefit from the counsel of an experienced intellectual property attorney, get in touch!