Microsoft En-Trench-ed In Trade Mark Tussle

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Trenched, a video game developed by Double Fine and produced by Microsoft, has had its European release date set back, potentially indefinitely, following a dispute over the name.

The European Community Trademark TRENCH, filed in 2009 by the board game designer Rui Alipio Monteiro, is registered against both board games and computer games. The designer also invested in registration of a number of designs, protecting aesthetic aspects of the board game.

Perhaps as a result of poor due diligence, Trenched the video game was announced in March, and released by Microsoft and Double Fine on the Xbox Live Arcade in North America on June 22, without cooperation from Monteiro who now appears set to fight Microsoft for exclusive use of the brand.

Speaking about the dispute to Eurogamer, the Portuguese company Criações a Solo explained that they intend to “defend all their author’s copyright and intellectual property against any infringements”, and stated their goal as “putting Trench in the international Hall of Fame of both classic electronic and board games”.

Double Fine’s Trenched not only shares elements of its name with Monteiro’s board game – they are both military-themed, and set in or around the time of WW1. Double Fine designer Brad Muir told Destructoid ‘This entire process has been very frustrating to us and it makes us sad that the people of Europe can’t play our game. Microsoft owns the IP for Trenched and they are working to resolve things as quickly as possible’.

Mark Methenitis at Joystiq offers some explanation of complications with the position in the US – namely that both the application for the logo shown here on the left, and Microsoft’s application for the mark TRENCHED, have so far been filed as intentions to use. This means that it might be some time before either are granted, however, should Monteiro’s application succeed, his rights will extend back to June 2010, nearly a year before Microsoft filed their own applicatio. In that case, an important question will be whether Microsoft’s use of the word mark TRENCHED could be confused with the Trench logo.

Some cite their investment in marketing as motivation for sticking to their guns, and it will be interesting to see whether Microsoft and Double Fine can come to some arrangement for coexistence with the board game designer or whether they will dispute the scope of their rights.

Alternatively, it is possible that media attention (such as this blog post) generated by the dispute might create enough buzz to offset the loss of investment in marketing should Microsoft persuade Double Fine to re-brand.

In the meantime, Microsoft’s line is:

‘We don’t have an update on the distribution of Trenched in Europe yet… We’re working to resolve the matter as soon as possible and will keep you posted’

Irrespective of the eventual outcome, this dispute is another very public example highlighting the importance of early clearance of brand names; and in particular international trade mark searching when products or services will be sold abroad.