Fans of video games may remember the Killer Instinct series, which first made an appearance in the arcades in 1994 and was ultimately ported to numerous home consoles. The last iteration of the series appeared in 1996 on the Nintendo 64 and, since that time, the series has sat dormant. In September of this year, however, Microsoft indicated its intent to revive the series by filing for trademark registration of the KILLER INSTINCT trademark with the United States Patent and Trademark Office.
Unfortunately, Microsoft’s application was denied on a §2(d) basis, that is, because it is likely to cause confusion with another mark registered with the USPTO. This denial, issued via USPTO Office Action, is not a permanent denial, however, as Microsoft has a period of six months to argue that its KILLER INSTINCT mark is not likely to cause confusion with the registration cited in the examining attorney’s office action. That is good news, as the registered mark that precluded Microsoft’s application is KILLER INSTINCT, a failed television drama, which aired for one season in 2005.
Office Action denials based on a likelihood of confusion are common, which is why it is important have a skilled attorney file for registration of your trademark. Presumably, Microsoft should be able to overcome this denial through skillful research and advocacy.