Tuesday was tumultuous for Microsoft! On the one hand, its hugely successful game console Xbox 360 was rescued from retail bans in both the United States and Germany. That’s good! On the other hand, its new operating system Windows 8 was deemed a monumental failure in the video game industry by data from both digital retailer Steam and physical retail tracker the NPD Group. That’s bad. Then there’s the Killer Instinct trademark, another piece of bad news for the company and its gaming business.
Microsoft itself announced in September that it was renewing its trademark to Rare’s fondly remembered fighting game for the 1990s. It was cagey about the announcement, teasing a potential HD re-release of Killer Instinct or even the long-rumored Killer Instinct 3. Neither will happen any time soon. The United States Patent and Trademark Office denied Microsoft the rights to the Killer Instinct trademark on Tuesday because it’s currently held by News Corp. subsidiary Fox.
“Trademark Ace Section 2(d) bars registration of an applied-for mark that so resembles a registered mark that it is likely that a potential consumer would be confused, mistaken, or deceived as to the source of the goods and/or services or the applicant and registrant,” reads the USPTO’s ruling.
Did Fox at some point make a game about werewolves punching skeletons repeatedly? No. The work in question is actually one of Fox’s many failed television dramas. It aired one season of a show also called Killer Instinct back in 2005, about eight years after Rare and Nintendo released Killer Instinct Gold, the last of the fighting series.
The USPTO clearly doesn’t use Google when determining trademark registration since it’s abundantly clear that there’s a distinction between the ridiculous 1990s brawler and a failed crime drama. The Wikipedia entry for Rare’s fighter is in fact the very first search result, then the show.
Hopefully Microsoft is able to win the rights to the name in short order. Microsoft Game Studios creative director Ken Lobb, creator of the entire Killer Instinct series, has been lobbying for the return of his franchise for years, but he’s also said that a digital release needs to succeed before a new game gets made. “I obviously have personal feelings about Killer Instinct, but I do think it’s got a place,” said Lobb in 2010, “Let’s bring back something that people loved in the past and see how it does on Live Arcade.”