Last month, Hyperfocus Games, the Scottish studio behind the upcoming wrestling video game Ultra Power Wrestling stated in a video update that it had successfully acquired a pair of trademarks for the WCW/NWO Revenge and WWF No Mercy developer AKI and that it was planning to use the classic brand to promote its spiritual successor for modern platforms. But the situation is a bit more complex than that.
This is because not only have the developers seemingly confused copyright law and trademark law but they also prematurely announced the trademarks as having been approved, while they are still currently listed as pending and awaiting further examination on the United States Trademark & Patent Office website.
Ultra Pro Wrestling, in case you're unaware, is a spiritual successor to AKI's wrestling games. It was crowdfunded two years back on Kickstarter and is described as a "love letter to the classic wrestling games of the late 90s", with the developers having gone to great lengths to recreate and reproduce AKI's famous engine and animations "as a baseline" to build upon.
In the past, Hyperfocus Games has continuously promoted the title as a tribute to the work of the famous Japanese developer, mentioning AKI across social media, videos, and elsewhere. As a result, Sam Vallely, the founder of Hyperfocus Games, has stated in the past that he anticipates some will believe they are "flying too close to the sun with the AKI stuff" and that people will suggest they could potentially be in danger of attracting a lawsuit from syn Sophia (the Japanese developer that previously went under the name AKI and was responsible for the development of those original titles).
In a recent video, however, Vallely clarified that the team has actually gone to great lengths to file trademarks in the United States Trademark and Patent Office for both AKI and AKI USA, as well as the studio's logo, believing this to be an adequate legal defence that should allow the company to continue promoting the game using AKI's name and branding in the future.
Speaking in a developer deep dive last month, Vallely told viewers:
"AKI was dead. It was dead. It’s not dead anymore, because Hyperfocus Games now own the trademarks for AKI, AKI USA, and the logo. And of course, we got Hal to draw AKI Man as well. Well, what does this mean for Hyper Focus games? Well, we’re not changing our name or anything like that. But it does mean that we can now promote AKI with this game. We now no longer have to say we are a spiritual successor. We are now the actual successor to those games, which I’m sure will rub some people the wrong way. I’m sure of it. But this really is our dream."
In response to this news, several commenters went on to state below the video that this meant Hyperfocus Games now "bought/own AKI" — something which the studio has seemingly encouraged by liking many of these comments. But that doesn't appear to be the case. You see, in the announcement, Hyperfocus Games rather crucially doesn't mention having any contact with syn Sophia Inc., which suggests the company has only acquired the "trademarks" (in reality, they are really "service marks") and won't be able to use any copyrighted material from any of those previous games.
This would mean they might not actually be able to use the AKI Man character, as they have previously teased, as he is an original creation of AKI and will likely belong to the company. As for the logo, it's a bit more complex, with branding also sometimes being subject to both copyright and trademark law, but only if the logo is considered an artistic work.
And if that wasn't confusing enough, it also doesn't seem like the trademarks have officially been accepted yet either, with the company apparently jumping the gun in making the announcement. Right now, both filings are listed as "pending" and "awaiting examination", with the process expected to several more months before it goes through.
We've reached out to Vallely for a comment and he sent us the following message, clarifying that the team had no contact with syn Sophia and, therefore, hasn't actually acquired any IP, just the possibility of using the name AKI in promotion of a video game:
"We got in contact with a lawyer who happened to be the same copyright attorney who helped AKI secure the trademarks in the US. We had hoped he would be able to track down the former owners as we would love to discuss UPW with them. But unfortunately there were two lines of contact which were both disconnected. We spoke to the lawyer about our ability to acquire the trademarks and we were informed that prior owners only have 3 years after the trademarks lapse where they can file a dispute. But these trademarks have been legally dead for around 20 years. There was an application for the trademarks filed a couple of years ago but that application was subsequently rejected. So the three year window has not been effected."
He also stated in response to questions about why they have announced the acquisition of the trademark, despite it still being pending, with the following:
"The reason they are still listed as pending is because the registration has to remain pending for 3-4 months after the trademarks go live. This is to allow for any disputes time to be processed but as our lawyer has said this is only an issue for us if the previous owners relinquished the trademarks within 3 years from our registration. So it technically doesn’t apply to us and there’s no dispute that could prevent our acquisition from happening and the trademarks switching from pending to active.
"So it’s a normal part of the trademark process and in our case, it’s not something we have to concern ourselves about. As our lawyer has informed us, we are able to promote and publicly announce our acquisition as the trademark was filed more than 30 days ago. But at this stage, we can only use TM next to the logo, we have to wait till the 3-4 month window is over before we can use “R” (registered trademark)."
If you've somehow followed all of the above, or are simply looking for the "TL:DR", this basically means that the company has tried to seize the abandoned trademark (and even the logo) without any actual communication with the original developers in Japan.