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Howard Marks, the founder of the indie studio Xreal, recently received a cease and desist letter from ZeniMax over the use of the word “Fallout” in the title of his upcoming game Fortress Fallout. ZeniMax is the parent company of Bethesda, which publishes the Fallout games, and owns a trademark on the title Fallout. You can see Marks explaining the situation in the video below.

The purpose of trademarks is to protect consumers from buying substandard products from imitators using the name of  popular product, and to protect the reputations of companies from being associated with such imitators. If someone were to make a post-apocalyptic RPG and called it Fallout, there would be a very good reason why people might confuse it with the already existing Fallout series, and possibly buy it on that basis.

However, Marks does not believe that their game violates the trademark, because Fortress Fallout is a significantly different game from the Fallout series, and their should be no confusion by consumers causing them to believe that they are related. However he admitted that they do not currently have the money to put up a drawn out fight in court over this, so they will be changing the name of the game.

This situation is similar to the dispute between Bethesda and Mojang a few years ago, over the game Scrolls which Bethesda claimed violated their trademark on The Elder Scrolls series. That dispute was eventually settled out of court with Bethesda agreeing not to challenge the use of the name Scrolls, as long as the game would not be a direct competitor against The Elder Scrolls and Mojang would not trademark the name Scrolls. Actions like these are giving Bethesda a reputation as a trademark troll, trying to strong-arm any indie developer with a game title even slightly similar to one of their own, even if the games are completely different and there is no way they could be confused for each other.

Marks is still taking suggestions for a new name for the game, so feel free to leave a comment on the video or send him a message if you have an idea. Hopefully they will have better luck with whatever new name the eventually choose.

Is this trademark trolling by ZeniMax/Bethesda, or is it necessary to protect their brand? Leave your comments below.

Max Michael

Senior Writer

I’m a technology reporter located near the Innovation District of Kitchener-Waterloo, Ontario.