Activision has 7 Years to Release a Crash Bandicoot Game
The last Crash Bandicoot game was released in on mobile devices in 2010. The game was called Crash Bandicoot Nitro Kart 2 but since then, there hasn’t be a game since. Activision is the current own of the beloved franchise since they gained control after the absorption of Sierra.
Activision is allowed to renew the trademark without releasing any franchise entries. Though that will only allow them to maintain ownership of it for so many years.
Trademark with the United States is run under the Trademark office and according to the Lanham Act, Section 8 dictates that a company needs to provide a declaration of use or excusable non-use and a specimen of said use to the United States Patent and Trademark Office between the 5th and 6th year after the registration of a trademark, then between the 9th and 10th year, and subsequently every ten years.
If Activision fails to provide that kind of documentation by 2021, the USPTO simply cancels the trademark and the franchise becomes available to anyone.
Currently the publisher is selling four Crash Bandicoot classics on the PSN, but they’re all exclusively for PSP and PS3 but they’re not supported officially, and that’s what matters in in legal terms). In 2021 we’ll be way past the end of the life cycle of both platforms, which means that that offering will most probably be not usable anymore as a specimen for a declaration of use.
Without a valid declaration of use, Activision would have to file a declaration of excusable non-use, and the following are the reasons accepted by trademark law:
- Decreased Demand. Decreased demand for the product sold under the mark, resulting in its discontinuance for an indefinite period, does not excuse nonuse. The purpose of the affidavit requirement is to eliminate registrations of marks that are in nonuse due to ordinary changes in social or economic conditions. See In re Conusa Corp., supra; In re Parmalat S.p.A., 32 USPQ2d 1860 (Comm’r Pats. 1991); Ex parte Astra Pharmaceutical Products, Inc., supra; Ex parte Denver Chemical Mfg. Co., supra.
- Trade Embargo or Other Circumstance Beyond Owner’s Control. Nonuse may be considered excusable where the owner of the registration is willing and able to continue use of the mark in commerce, but is unable to do so due to a trade embargo.
- Sale of a Business. Temporary nonuse due to the sale of a business might be considered excusable.
- Retooling. The mark might be out of use temporarily because of an interruption of production for retooling of a plant or equipment, with production possible again at a scheduled time. However, nonuse due to retooling is excusable only if the owner shows that the plant or equipment being retooled was essential to the production of the goods and that alternative equipment was unavailable on the market. In re New England Mutual Life Insurance Co., 33 USPQ2d 1532 (Comm’r Pats. 1991).
- Orders on Hand. If the product is of a type that cannot be produced quickly or in large numbers (e.g., airplanes), yet there are orders on hand and activity toward filling them, nonuse might be considered excusable.
- Illness, Fire and Other Catastrophes. Illness, fire and other catastrophes may create situations of temporary nonuse, with the owner being able to outline arrangements and plans for resumption of use. Such nonuse is often excusable. However, a mere statement that the owner is ill and cannot conduct his or her business will not in itself excuse nonuse; the owner must show that the business is an operation that could not continue without his or her presence. New England Mutual Life Insurance, supra.
- Negotiations With Distributors. A recitation of efforts to negotiate agreements that would allow for resumption of use of the mark, or a statement that samples of the goods have been shipped to potential distributors, may establish lack of intention to abandon the mark, but does not establish the existence of special circumstances that excuse the nonuse. In re Parmalat, supra; In re Moorman, supra.
- Use in Foreign Country. Use of the mark in a foreign country has no bearing on excusable nonuse of a mark in commerce that can be regulated by the United States Congress. In re Conusa, supra.
- Use of Mark on Different Goods/Services. Use of the mark on goods/services other than those recited in the registration does not establish either special circumstances or lack of intention to abandon the mark. Ex parte Kelley-How-Thomson Co., supra.
- Use of Mark in Another Form. Use of a mark as an essential part of a materially different composite mark does not excuse the failure to use the mark at issue. In re Continental Distilling Corp., 254 F.2d 139, 117 USPQ 300 (C.C.P.A. 1958).
Presently there is little concern as Activision has 7 years to act. But still, it’s interesting to learn how these things work