Killer Instinct trademark application by Microsoft refused by USPTO

Microsoft had earlier applied for Killer Instinct trademark in September this year, but the trademark application for that has been rejected by the USPTO (The United States Patent and Trademark Office).

The reason given was confusion, which is also one of the primary reasons why most applications are rejected or refused for renewal. It has also a lot to do with how active the IP is, and as we all know how Rare and Microsoft have been treating it.

“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.,” was the reason given for the refusal by the USPTO.

Nintendo had previously abandoned the trademark in 2006, and it ended up with Fox Television Studios. Microsoft has tried to apply for it and have got rejected due to similarities.

U.S. Registration No. 3370331 belongs to Fox Television Studios, Inc., who have been using this for the past 5-6 years by airing a popular show called Killer Instinct since 2005. They have registered the word ‘Killer Instinct’ in the “entertainment services in the nature of a television series featuring drama” section.

It’s fair to say that Fox has a lot of rights and power over the trademark, but Microsoft is a company that will not back down.

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.

It remains to be seen what Microsoft does now. You can read the rest of the convoluted document here.