It isn’t often that Forbes and Arcade Sushi are reporting on the same story. But some news is so big, so ground breaking, and so important that all media outlets cannot, in good moral consciousness, fail to comply with their duty to inform the public. Obviously, I’m talking about Microsoft’s potential reboot of the Battletoads franchise.
For those of you who wasted away the early 1990s not playing video games, (shame!) the Battletoads video game franchise centered around three mutant toads (Rash, Zitz, and Pimple), trained in marital arts, who fought against evil doers. And I can assure you that any and all similarities between these characters and the Teenage Mutant Ninja Turtles are purely a coincidence. The video game’s developer, Rare, has said so and they certainly would have no incentive to lie.
The game was first released in 1991 on the original Nintendo (of the Entertainment System, or NES, variety). And it was a big hit. Gamers loved it, even though it is considered one of the most difficult video games to beat, even still today. Yet despite the popularity, the last home console video game was released in 1993, while the last Battletoads video game ever was released in 1994 as an arcade machine. And then, nothing.
But the fans continued to praise the game. From 2010 onward, gamers and media organizations continued to place Battletoads as one of the top games that should be remade on a new system. Among the advocates were Game Informer, Maxim, GameRevolution, SiliconEra, and yes, even Forbes. Sounds like a great idea. But who owns the rights to the game?
Turns out, Microsoft – maybe. Rare, the game’s original developer, is a British game developer that has been around since 1985. However the company was purchased by Microsoft in 2002 for $375 million. And now, after 12 years of waiting, Microsoft may be bringing the Battletoads back. Where is all the speculation coming from? Well, it turns out that just last week, Microsoft filed an application to register the mark BATTLETOADS in connection with video game software. And let the rumor mills begin (and continue, and continue).
The response from Microsoft when reached for comment?
Microsoft often acquires various trademarks as part of its ongoing business strategy, but beyond that we have no comment.
So, case closed. Microsoft owns Battletoads. Probably. They presumably purchased all of Rare’s copyrights and trademarks, even if Rare/Microsoft hasn’t produced a Battletoads video game in exactly 20 years. Which of course raises the question of whether the trademark had been abandoned. Could a rival game-maker have produced their own video game last year and called it Battletoads?
Under the Lanham Act, abandonment occurs when “its use has been discontinued with intent not to resume such use.” 15 U.S.C. § 1127. However, three years of non-use creates a presumption of abandonment. Well, by my lawyer math: 20 > 3. But of course, there are always exceptions. For example, continued sales of older products can constitute use of the trademark, attempts to license or sell products or the rights to the trademark can also weigh in favor of a finding of non-abandonment.
Some courts treat the issue as whether there is “continuing recognition” of the mark by the public. This is more common with out-of-production automobiles, in part due to their expensive nature, continued production of parts, and continued provision of repair services. Those factors aren’t quite so strong with video games. However, based on the continued public outcry for more Battletoads, it is hard to deny their isn’t any continuing consumer recognition or residual goodwill in the Battletoads mark. So maybe, just maybe, it was a good idea I didn’t quit my job last year to release my own Battletoads video game. It would have been fun, but I avoided a potential trademark battle (along with likely claims of copyright infringement, too, for the Battletoads characters…).
Over the last few years, American business appears to be in love with recycling. We’ve seen remakes for nearly every super hero movie (even remakes of remakes with Spiderman and the Hulk). Dodge has resurrected the Challenger. And now Microsoft has brought the Battletoads back to life. Will this be the start of a new rush to buy up rights to old video game titles?
I’m not sure. But my guess is that it will be difficult to buy copies of Battletoads on eBay for a while. Almost as difficult as beating the game.