On the 17th of September, Microsoft announced via their PlayXBLA hub that they for Killer Instinct "either renewed or refiled a trademark application in various jurisdictions.", as discussed here: http://www.neogaf.com/forum/showthre...iller+instinct
New data as of the 29th of November shows that this application has been refused by the The United States Patent and Trademark Office (USPTO) because of likelihood of confusion
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 3370331. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq.
Trademark 3370331 is a simple word mark "KILLER INSTINCT", and it's owned by Fox Television Studios, Inc.
Applicant’s mark is KILLER INSTINCT for “video game software” and “entertainment services, namely, providing online video games.” Registrant’s mark is KILLER INSTINCT for “entertainment services in the nature of a television series featuring drama.”
The most apparent use of the mark by Fox is that of the Killer Instinct crime drama television series aired in 2005, which is also what is directly referenced. There may be other uses of the mark in Fox's shows.
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.
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.
A few examples of tv series that have been turned into video games are given, with Lost being a prime example. Upon these examples, this is stated:
Thus, 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.
Seemingly, Microsoft (and Rare?) has been halted a bit, and who knows what might happen to this game now, a name change maybe? Though with Fox being Fox and Microsoft being Microsoft, this could potentially turn into an ugly fight. If Killer Instinct is deemed important enough that is.
Microsoft may respond to the refusal by providing evidence and arguments in support of the registration.
The document in full