Killer Instinct is a IP that first belonged to Nintendo which they abandoned in 2006, which was picked up by Fox Television Studios who started airing a TV show called ‘Killer Instinct’. So now Microsoft has applied for the trademark but have been rejected by the USPTO citing confusion and similarities.
One could argue that Microsoft really doesn’t deserve the trademark since they don’t really use that IP anymore, but it rightfully belongs to them and I am not really sure what video games have to do with television shows even though both come under entertainment.
The USPTO obviously found that Microsoft was not deserving of the trademark and Fox has been using it well but since it’s in the entertainment section, is it really wise to compare television shows to video games? They feel that Killer Instinct could be made into a video game as well which could result in a confusion.
Here’s what the application–which was filed in September this year–denial statement read.
“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,” read the patent document.
“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.”
Microsoft has a case here surely but you can be sure of the fact that they will do something about this and not give up easily. You can read the document here.
