Dear CD Projekt Red: Please Stop Trying To Get Trademarks On The Common Name Of A Genre

When it comes to bastions of hope in the video game industry on intellectual property matters, we've been happy to laud CD Projekt Red (CDPR) for getting most things right most of time. The company's stance on keeping its games DRM-free while being immensely successful has been a breath of fresh air, while its tendency towards bucking the DLC trend in gaming by not nickel-and-diming its fanbase for every last little thing. These are generally good folks, in other words, which is why it's a little disheartening to see how the company is handling the backlash over its attempt to trademark the term "Cyberpunk" in the EU.

But first, some background. Cyberpunk 2020 is a pen and paper roleplaying game developed by Mike Pondsmith. CDPR announced in 2014 that it was making a game based on that system, entitled Cyberpunk 2077. To that end, it acquired the already granted US trademarks for the term "Cyberpunk", originally registered in 2011, from Pondsmith's publishing company. Cyberpunk is also, of course, a common genre term for fiction, movies, and video games. If you're asking why the USPTO ever should have granted a trademark on the singular term "Cyberpunk", the answer is obvious: it shouldn't have. The term was coined in the 80s and quickly grew in usage to the point where its an established genre of fiction. Trademarking it for the use in titles within a common medium of fiction is crazy. Yet, in the course of acquiring the rights to make the game, the original granted mark was transferred to CDPR when it began making the game, and the company likewise got a trademark registration for the full name of its game, Cyberpunk 2077.

The recent uproar is because now CDPR is attempting to register the term "cyberpunk" in the EU itself, as opposed to having it transferred from a previous owner. The backlash was quite severe.

The trademark actually makes for the biggest public development for the project in recent months. On forums like Reddit, though, the focus was less on what this could portend for the long-gestating Cyberpunk 2077 and more on how one studio owning the word "cyberpunk" could cause trouble for other games in the future.

"I hope they won't be able to push that trademark, it's kind of uncool move," reads the original Reddit post from last week, which quickly blew up. "We wouldn't be able to have term cyberpunk used just like you can't use terms Banner or Saga without a fear of being sued. Future games like [VA-11 Hall-A: Cyberpunk Bartender Action] would have to dance around the term that's core to their concept and wouldn't be able to use the term in the title."

Admittedly, some of this uproar has been the result of confusion between trademark and copyright and the differences between the two. Still, a big chunk of the concern out there is whether or not other games can still use the term in their titles and associated branding or marketing. And that concern is perfectly valid. It's also quite logical for the mind to recoil at the idea of a single company locking up rights to use the term for a common genre in its title names. The backlash got loud enough that CDPR had to respond, though the response was somewhat lacking.

Information about Cyberpunk trademark. pic.twitter.com/4mufRCp9Gf

- CD PROJEKT RED (@CDPROJEKTRED) April 6, 2017

Look, the positioning here isn't entirely unreasonable. The US trademark wasn't originally filed for by CDPR, it was transferred to them when it got the rights to produce the Cyberpunk 2077 video game. But the EU application is theirs. Attempting to assuage legitimate fears of overreach by pointing out that the company has never been one to bully on intellectual property matters and promising to only use the trademark defensively are valid points, but they miss the mark for several reasons. First, the fact remains that trademarks ought not be granted on common, indistinct terms, for which a common fiction sub-genre easily qualifies. Second, past history isn't a perfect predictor of future behavior, so CDPR's previous good acts aren't good enough to defeat the principal argument. Angels do fall, however infrequently.

But the most curious part of CDPR's response is the actual remedy to all of this is near the end of its own response. In case you missed it, the response suggested:

The role of the trademark is only to protect words, signs used as titles of games, names of products, etc. If someone names their game "JOHN SMITH: ADVENTURES IN A CYBERPUNK DYSTOPIAN SOCIETY" OR "20 SHORT VIDEO GAMES SET IN CYBERPUNK WORLDS" none of them should be treated as infringement of our rights.

That's exactly correct, which is why CDPR's game never should have been named so generically if the company wanted a trademark on the title. All that was required to avoid all of this was for a more distinctive title and for the trademark application to be for that distinctive title, as opposed to the common term "Cyberpunk." Even for the US mark, there are provisions at the USPTO for surrendering a mark while retaining the trademark registration on the more distinctive associated marks. "Cyberpunk" could be surrendered while retaining a trademark on "Cyberpunk 2077."

Look, when CDPR says it doesn't plan on being a bully with its trademark, I happen to believe them. The company has put too much good will in the bank for me to think otherwise as of now. But that isn't the point. The point is that there ought to be no trademarks on a term like "cyberpunk" to begin with. Excusing holding that trademark away while also applying for a new trademark in the EU isn't a good look.