No Matter Studios is a small indie team comprised of three people, based in San Francisco. Its debut game, Prey for the Gods, was revealed in 2015, raised over $500,000 on Kickstarter, and has been on the hotly anticipated radar pretty much ever since—as it stands, its release date is December 2017. While the creation of a skeleton crew, that it has been elevator-pitched as a Shadow of the Colossus-like experience, with trailers to reinforce the impression, has ensured Prey for the Gods‘ sustained presence in our minds.
Now, however, Prey for the Gods is no more—in name, at least. Bethesda Softworks’ parent company, ZeniMax Media, has opposed No Matter’s registering of “Prey for the Gods” as a trademark, considering it too close to one of Bethesda’s current projects, the Arkane Studios-developed Prey. Which is, itself, a reboot of an older game, the rights to which ZeniMax, through Bethesda, has held since 2009.
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And so, we now have Praey for the Gods. (In text, at least—the game’s logo, confusingly, remains unchanged, ostensibly appearing as “Prey”.) Which actually works on a conceptual level. When Waypoint spoke to No Matter’s Brian Parnell, the game’s director, he told us that “there’s a number of different ways to look at the title”, saying that it could just as easily be read as “pray,” to proffer reverence and respect to its gigantic creatures, as it could the odds-against-you spelling and connotations of “prey.”
But it’s not the title that this tiny studio has had out there, publicly visible, written across countless articles and updates, for over 18 months. Eighteen months that, at any time, could have seen ZeniMax reach out to the indie team with a polite message of, “Well, actually, guys, you see, the thing is…” But instead, nothing was said or done until No Matter attempted to register their game formally—and now, they can’t, as they wanted to.
But the thing is, would anyone really mix these two games up? One is a love letter to a cult classic retro game, a snowy escapade of ducking between the legs of titanic beasts, desperate to survive against the odds. The other, a revision of a previous-gen shooter, set on a space station, all jump scares and spooky shadows, where the player character can turn themselves into an extra-terrestrial magician.
They do not look alike. They do not play alike. Nobody in the world, should they see the two games playing side by side, could possibly conclude: this is the same thing.
Nor, surely, would anyone venture out to their local games shop, or click through to their preferred digital store, and confuse one for the other. The clue is in the titles: One has four words, clearly distinguishing it from the other, sold with just the one. Elementary, really.
I don’t know how anyone else feels about this, but to me, this feels like a kind of bigger-boy bulling—it’s a massive multinational flexing its muscles where it needn’t, truly, bother at all, just because it can; and impacting on the ambition, and the intended direction, of a considerably smaller operation. It’s not quite as ridiculous as Sky television’s tête-à-tête with Hello Games over the use of the word “sky” in No Man’s Sky, a lawsuit which the British games studio won after three years of arguing. But all the same: really, ZeniMax? Are you really so precious about your IP, here? An IP that’s existed, in one form or another, since 1995?
(ZeniMax has form here, FYI, as in 2012 they contested the word “scrolls” with Mojang. In that instance, though, Mojang’s bigger coffers saw the contesting parties reach a settlement.)
“This is something no starting company should have to deal with, let alone a tiny team of three.” — No Matter’s statement
No Matter have taken it on the chin, as elegantly as they can, issuing a statement that reinforces their position as being unable to argue against the financial clout of the opposing party:
“We didn’t want to do this, but we’ve had to change our game name. We could have fought this, and we did think about it for quite a while. Something like a trademark opposition can be long and, depending on how far someone wants to fight, it can be expensive. We didn’t want to spend our precious Kickstarter funds, nor did we want to have to ask for additional funds to fight this in court.
“ZeniMax chose to oppose our (trade)mark, as they felt (it) too similar to their mark ‘Prey.’ While we disagree with their opposition, we were unable to come to an agreement. It kept me up many nights, and shifted focus from our game frequently. Worrying about the outcome if we went to trial, or walk away from the mark and still potentially get sued for millions on trademark infringement. This is something no starting company should have to deal with, let alone a tiny team of three.”
(The above statement has been edited for length—you can read the whole thing here.)
Prey screenshot courtesy of Bethesda.
Bethesda has also released a statement on the matter, via IGN, which is significantly shorter: “We really didn’t have much of a choice. If we don’t oppose the mark, we risk losing our ‘Prey’ trademark and that isn’t acceptable. Unfortunately, that’s how trademark law works.”
Well, it does and it doesn’t. ZeniMax registering ‘Prey’ as a trademark does prevent other companies from releasing products in the same market bearing the same title—but one of the key words, in UK law at least, with regard to what qualifies as an infringement, is “identical.” Prey for the Gods and Prey are not, or rather were not, identically titled video games.
Again, I can’t speak for US law, which no doubt covers this disagreement, but as I briefly studied law at college in the UK, I’m aware that similarity is also a factor for analysis and assessment. Are the two titles similar enough to cause genuine consumer confusion, to explicitly affect the commercial prospects of either product? I don’t think so. But then, I’m not actually a lawyer—that ship sailed pretty quickly, several years ago.
You only have to look at another recent example of a games industry company registering a trademark that’s also a widely used word/term, appearing in several video games, to see how this could have been better handled.
Polish studio CD Projekt RED, the makers of The Witcher series, recently registered the word “cyberpunk” as a trademark, ahead of the release of their forthcoming Cyberpunk 2077 game. Naturally, this caused some concern—think of all the video games out there now, that have been and that will be, that lean on cyberpunk influences for aesthetic styling, narrative thrust and titular identifying.
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But CDPR quickly explained its actions, saying that this was a normal process (it is) and that them having this trademark was “a self-defense measure” exclusively against other companies who would look to use it in obviously competitive ways. It does not forbid other developers using the word in their own titles or synopsis—it just prevents them from using “cyberpunk” as the main word in a title, in such a way that it could represent a consumer-confusing shorthand.
So, no “rival” company could put out a game six months after CDPR’s called Cyberpunk 2078, looking to cash in on the previous game’s public visibility. And it’s worth noting that the Cyberpunk 2077 website is simply cyberpunk.net—there’s series ambition here, so it makes total sense that they’d register the word.
As I see it, this level of sensible reasoning over a trademark would allow Prey for the Gods to continue “trading” as Prey for the Gods—but here we are. ZeniMax refused to budge on the issue, and we’re left with Praey instead. As an aside, when IL-2 Sturmovik: Birds of Prey came out in 2009, nobody representing 2006’s Prey tried to force a title change. The same was true in 2008, when Prey the Stars came out for the DS—but both releases came before Bethesda, and by association ZeniMax, took on the Prey franchise.
Now, you might regard all of this as not a big deal, in the grand scheme—the smaller game’s not been shut down or anything, and what you do in it won’t be affected in the slightest. But it’s the basic, as I see it, punching down here that leaves a bad taste, and right before Prey comes out, too, on May 5th.
Given it’s a game with no advance reviews, selling itself in the UK as “ BioShock in space” (on massive London Underground posters, no less) as much as it is anything actually original, Prey needs all the help it can get to make a significant dent, commercially and critically, in a year (so far) of bona-fide brilliant releases. And stuff like this relatively needless argument over a four-letter word, resulting in the underdogs being put in their place courtesy of the sheer financial impossibility of fighting their corner, inevitably absolutely sours expectations and opinions prior to properly playing the thing.
