Fallout Publisher Sends Legal Threats To Game With 'Fallout' In Title

Indie developer and YouTube personality Jordan Maron is changing the name of his upcoming mobile game Fortress Fallout after receiving a cease-and-desist notification from Zenimax Media, the parent company behind Fallout publisher Bethesda.

Maron explained in a video published yesterday on his popular YouTube channel CaptainSparklez (via Polygon) that while he's been working on Fortress Fallout since last August, he only heard from Zenimax's lawyers last week when Xreal, the indie studio making Fortress Fallout, received a letter asking them to rescind a trademark application for the game. He hadn't considered potential legal ramifications of including "Fallout" in the name of his game prior to that because he didn't see any reason to since, Fortress Fallout is such a different game than Bethesda's Fallout titles.

Whereas Fallout is a massive first-person open-world role-playing game played on consoles and PC, Fortress Fallout is a free-to-play mobile game with cartoonish 2D graphics and an emphasis on competitive multiplayer. The game is still in beta and has no firm release date. Here's a screenshot from the game's Twitter profile, to give you and idea of what it looks like:

Fallout Publisher Sends Legal Threats To Game With 'Fallout' In Title

And here's a screenshot from Fallout 3, which Bethesda released in 2008:

Fallout Publisher Sends Legal Threats To Game With 'Fallout' In Title

Maron makes it clear at several points in his video that he and the other Fortress Fallout developers never intended to mislead consumers into thinking their game is related in any way to the Fallout series.

Likening his situation to the 2012 legal dispute between Zenimax and Minecraft developer Mojang over the latter using the word "Scrolls" in their game, Maron said in the video that the Fortress Fallout team doesn't have the time or money to push back against Zenimax's request. We've reached out to Bethesda for comment and will update this should they say something.

"Our lawyers said that Bethesda is a notoriously litigious company," Maron said in the video. "Obviously they have lots of money and resources at their disposal which we don't really have at the moment. So essentially we are being strong-armed into having to change our name, which is unfortunate because I personally don't see how there is any confusion between Fortress Fallout and the Fallout games."

Seeing no other feasible resolution, Maron decided to just change the name of Fortress Fallout. The developers haven't settled on a new name yet, though he said that he'd like to keep "Fortress" if at all possible.

While he might have accepted defeat, Maron made it clear in the video that he thought the intellectual property dispute was a comically absurd case of a small indie developer being "strong-armed" by a larger and better-funded rival. He likened Zenimax's actions to the practice of patent-trolling, suggesting at one point that he should make a game called "The" and then go after any other developer trying to publish a game with the word "The" in the title. Later in the video he mentions plans to change the name of Fortress Fallout, joking that using the word "Of" might land him in hot water with Nintendo for infringing on the company's trademark for The Legend of Zelda.

"Congratulations, Bethesda," Maron said in the video, clapping his hands briefly. "You won. You beat us. You exercised your might, showed us who's boss. We'll make sure that people do not think our game is part of the Fallout franchise. Wasn't our goal from the start. So... yeah. Well, we'll change it."

You can read a copy of the letter Zenimax sent below:

Fallout Publisher Sends Legal Threats To Game With 'Fallout' In Title

Comments

    In a just world this publicity should hurt the sales of zeminax games. But it won't.

      By my understanding, if you don't challenge a trademark violation, you lose all right of reply when someone goes about to deliberately violate your trademark. It's nothing to do with 'just'. It's to do with trademark law and precident. Zenimax doesn't want to lose the trademark. They paid a lot of money for it. So they HAVE to do this.

      Last edited 17/02/15 1:00 pm

        I get that, my problem is with the ridiculously broad scope of the trademark.

        If this were a post apocalyptic game with the word fallout in the title, I'd give you that. But it's not. The context HAS to be part of the claim, or its just people owning words. That's stupid!

        The same applies to when they sued mojang over the word "scrolls". Or when King went after people for the word "saga"!

        The state of the system may force zenimax's hand, but the system is as broken as that of patent law, where they fight tit-for-tat over "a rounded rectangle with glass front".

          You'll get no argument from me about the system being broken. It's as broken and outdated as all hell. The problem is with systems like this is that they are a bugger to change.

            The system isn't broken and it never has been; the system is working as intended.

        It is also untrue. Look at Star Wars - there's literally millions of items of fan-made content, and the Star Wars trademark still belongs firmly in the hands of the owners.

        Though, why do indie game makers want to trademark their game names? If you can't afford a lawyer, the trademark isn't worth jack shit.

    Change it to 'Fuck You Bethesda'. They can't sue since Bethesda is the name of a town.

    Or make it a parody game called

    Doomed Scrolls: The Evil Within Todd Fallout that Raged Max the Dishonored...Wolfenstein

    Last edited 17/02/15 9:46 am

      ... & Knuckles.

    I don't want to side with Zenimax here because I really don't think there was any danger of anyone mistaking "Fortress Fallout" as a "Fallout" franchise game, but I do appreciate that they have to protect their copyright to prevent a dilution effect and the market being flooded with shoddy clones.

    I wish it didn't be like it is, but it do.

      Just a minor correction, it's a trademark, not a copyright dispute.

      Also, I was under the impression that a trademark was a logo or style, not just the word itself. I guess that's not true (at least in the US). It doesn't make sense that someone can claim a word and exclude everyone else from using it. There's only so many words in the world after all.

      I could understand if developers used the Fallout logo with that dirt texture and font etc. That would be an intention to mislead, but just the word fallout in conjunction with another word doesn't seem misleading to me.

        The thing about Trademarks is that while a particular word cannot be trademarked and it's generally reserved for a particular format of a word, in a specific font, or a particular logotype, anyone doing something kind of similar can still dilute the trademark.

        Rooster Teeth came up against opposition when they trademarked their logo because a French clothing company, Le Coq Sportif claimed that the Rooster Teeth rooster was too similar to their own. Rooster Teeth of course opposed this on the basis that the logos were sufficiently different, their rooster is always accompanied by Teeth, etc. At the same time Rooster Teeth has had to oppose other people infringing on their logo, with the infringers claiming that their Rooster is a generic piece of clip art.

        If this dude believes he has a case for using the name "Fallout Fortress" he's free to oppose it and indicate why Fallout Fortress doesn't infringe on the trademark. He's chosen not to, instead crying foul for the free publicity. That doesn't make Zenimax wrong for protecting their trademark in the first instance.

    The word FALLOUT is copyrighted in terms of title, so as much as people want to be pissed, they need to understand that Bethesda is within their legal right to do this. Protecting your IP is important in the games industy, they've done nothing wrong in doing this. If they let one guy go, it sets a precedent if they then go after someone else who produces a game called say 'FALLOUT TERRITORY' if they've already let 'FORTRESS FALLOUT' go without repercussion.

    Stop immediately siding with 'the little guy' because you immediately think 'little guy good big company bad' and actually think of the situation first. If he'd actually done his research and considered the name he was using first, he wouldn't have found himself in this situation. It's his fault entirely.

    Last edited 17/02/15 10:11 am

      Can't he just hyphenate the word to circumvent the situation? In doing so however I could see Zenimax kicking up another letter about that.

      Last edited 17/02/15 10:12 am

        There's certainly an argument that changing it to "Fortress Fall-Out" would distinguish it from the Fallout brand but then Zenimax would make the argument that because the game was previously called "Fortress Fallout" he needs to go to greater lengths to distinguish his product from the Fallout brand than if he had called it "Fortress Fall-Out" in the first instance.

        In this case it's best if he avoid using the words "fall" and "out" entirely.

        I believe that may strengthen his case. If he distinguishes the visual representation and effect of the word from Zenimaxes IP it'd definitely help.

      Copyrighting a word, that's commonly used in language and not even original to begin with, is complete bullshit.

      As he pointed out, why not create a series of games called 'The' and then prevent everyone else from using the term. What's the difference?

        Well for a start, there's far too many instances of "The" being used previously to establish a copyright or claim trademark. That didn't even work when the Candy Crush guys tried to trademark the word "Saga".

        'the' is not a title, naming word or anything in that vein at all. Fallout in this case, is a very distinct name of a pre-existing franchise, long established for almost 20 years. That's a bit hyperbolic of you.

          I'd agree with you guys if the game attempted to fool consumers into thinking it's related to the Fallout franchise. But it clearly isn't. There's nothing about it that even remotely resembles Fallout in either style, art or gameplay. This is an example of overzealous litigation attempts.

            This is an example of overzealous litigation attempts.

            Saying it doesn't make it true.

            Let's have a thought experiment

            Fallout Fortress hits the market. It's clearly not the same game or in any way related to Zenimax's Fallout franchise. The two are unlikely to be confused by any reasonable person.

            Tomorrow, Fallout Battlegrounds hits the market. It's a tactical turn-based strategy/combat game in a world devastated by nuclear war. It's clearly not set in the fallout universe though, and there's like 10 ways it's different to Fallout Tactics. Besides, the name Fallout is generic now, because Zenimax didn't oppose Fallout Fortress.

            Next week I'm releasing Fallout Old Vegas 2: the next one. It's an immersive RPG with a mechanic similar to VATS, set in the desolate post-apocalyptic wastelands of what used to be Nevada. It features a lone wanderer called "The Traveller" who travels around exploring underground shelters called "Crypts" where society housed their best and brightest for safekeeping before the war and resolve armed conflicts among opposing factions.

            What? You can't copyright a *concept* and the name Fallout is a generic term because Zenimax didn't oppose the use of it before.

            Is this shameless abuse of the slippery slope argument? Yes, absolutely. But that doesn't mean it can't happen, and there are people out there who would shamelessly abuse quirks like this to market their shitty knockoff games to an existing audience, not caring whose brands they damage in the process.

            Zenimax filing a suit to have this guy change the name of his indie title is business as usual. It doesn't make them any more evil than your phone company sending you a bill each month and expecting you to pay it on time.

              And allll that is irrelevant, because this is a trademark dispute, not copyright.

              Which means you can release Fallout Old Vegas 2: the next one, and don't try to register the trademark, and Zenimax can't do shit.

                ... And? What's your point? This guy tried to trademark Fallout Fortress and Zenimax entered a dispute to protect their brand. That's completely different than an untrademarked item or a fan creation like you mentioned in your post about Star Wars.

      I reckon he knew exactly what he was doing when he put Fallout in the title. How many people search for Fallout 4? Free publicity and he can also cry wolf about the big guy trying to stamp him out.

      Yeah, another one of those arbitrary "it's the law" arguments that only consider a pragmatic perspective and then proceeds to pretend it's the only one that exists. Nope, there are a number of perspectives to this issue and every single one that isn't yours cannot be simplified by "little guy good big company bad". Sad when people project false intentions of others for the sake of argument. It's not evil and they have a right, sure, but the law here is intended to protect potential infringement, loss of revenue and the value of their brand. The point is that the "little guy" here has no recourse and doing his research wouldn't have told him to not use the word "Fallout" in any way. There is also no logical reason to believe the simple use of a word could possibly cause a loss of revenue or brand identity.

      The reason there is an issue here is that beyond the use of a noun in a different context with a different meaning, there is also nothing stylistically or content-wise linking the two properties, beyond a noun with a contextually different meaning. This is a pretty fine argument and it can be argued provided they get an insane amount of cash - which they along with most people cannot get - which places the law squarely in the court of a big business whom everyone is saying "they can, so they should" with the useless excuse of having to put start ups with properties that are not relevant to their IP under extreme financial duress so a precedent is not set.

      Look at that.

      That's ridiculous. It's insane anyone can defend paying to win like that. Instead of saying "nothing to see here" we should be like; "this is screwed, that property can in no way realistically infringe on the other" and feel the need to expand the language so ridiculous situations like this don't occur and companies are able to protect their IP. At the moment, it could be argued that they aren't protecting their IP, their protecting themselves from an antiquated part of trademark law that forces action when it shouldn't be necessary. It's not their fault either but looking at the issue holistically (blaming the victim or feigning insight whilst pushing a singular perspective is not holistic) it has some major cracks in it. However old a franchise is, it's a word with potentially wildly different contextual meaning however it's used. It isn't "pokemon", it's "fallout", as in; shelter, suit, boy.

        Another one of those overly long responses that didn't actually mean anything in the end...

        Where is it "pay to win"? If he issued a response citing the differences between his trademark and Zenimax's and making a clear argument for why his should allow to exist independently and THEN got shut down for completely unjust reasons and this matter became litigated we'd have a whole different discussion. What's happened here is literally just how the game is played - he apparently has the knowledge to file a trademark but is completely oblivious to what might happen next? I call bullshit.

        Let's use a sporting analogy:

        He threw a pitch, Zenimax took a swing (because that's what you do when someone throws a ball in your general direction) and hit an easy grounder between second and third. Instead of the short stop getting off his ass to run the batter out at first, the pitcher flopped on the mound and cried "foul ball" , appealing to the crowd to give him sympathy points instead of listening to the umpire who will at some point in the future call it a home run if that ball just sits there in the grass while Zenimax casually strolls around the bases.

    Yes it probably wouldn't be a game people thought was a new Fallout, but tbh, that's why people trademark names of franchises these days. They're exercising their rights from owning the rights to the Fallout series and, at a time when they're probably ramping up a PR campaign for a new Fallout to be unveiled at E3.

    What this is though, is free publicity for the developer of the game and I wouldn't be surprised if developers try to do the same again to get a cease & desist letter from a big publisher, put it up on the internet and then cry foul to news sites, or if that's exactly what he's done in this case. Everyone loves a story of the little guy being trod on by the big guy so people can complain about big corporations.

    I'd also be keen to know if he's allowed to publish the cease & desist letter online. It's a legal document. As far as I'm aware, you're not allowed to publish legal documents without permission from all parties and I doubt Zenimax have given their permission for him to badmouth them.

    Just trying to provide an argument for both sides rather than the comments being filled with 'yeah, screw you Zenimax'.

    Edit: looks like I'm not the only one who can see this point of view

    I'm still going to laugh at anyone called a 'Youtube personality' though

    Last edited 17/02/15 10:22 am

    Won't we eventually run out of words to name games, because they've all been trademarked? New games will be titled like internet handles, all underscores and numbers :P

      At some point parties will compromise on allowed usage where the products are clearly distinguishable, which allows them to maintain the integrity of their brand.

    Its Candy Crush all over again...... :(
    Quick, someone copywrite the word The. Then no game title can ever use it.

    Last edited 17/02/15 12:19 pm

    The word "fallout" means: the adverse results of a situation or action.
    "he's prepared to take calculated risks regardless of political fallout"

    It has nothing to do with the video game series "Fallout" - to be able to copyright a word is just pathetic and anyone who defends it is clearly lacking in their thought process.

    He has done nothing wrong. Nothing. Bethesda are being nothing more than than typical giant bullies. He clearly hasn't tried to mislead anyone into thinking his game relates to the Fallout series. No logos, font, text, genre.....Absolutely nothing relates to the Fallout series except in the paranoid, litigious mind of Bethesda. Let's just copyright every word and watch every developer/publisher sue each other into the abyss.

    Yes. it is no different to calling a game "The" or "Of" - every word has a definition that can be used in a variety of contexts that are totally parallel to one another. Bethesda have no business sticking their nose in. Period.

    I think this one's fair enough. I'm sure he can pick another word.

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