News

Activision Needs to Do Something with Crash Bandicoot by 2021 or Risks Losing the Trademark

by on July 13, 2014 4:40 PM 145

Activision’s ownership of the Crash Bandicoot franchise is cause of no small measure of chagrin for many PlayStation fans, as the publisher has proven reluctant to actually do something relevant with one of the beloved franchises that carried Sony’s platforms to their current popularity.

The publisher gained control of the franchise after the absorption of Sierra, and besides rumor and very vague mentions, its plans for the use of the character are shrouded in mystery, if they even exist.

Yet, Activision can’t just sit on Crash Bandicoot forever. While trademarks can be renewed, and Crash‘s  has indeed been renewed in 2011, there are legalities involved that ensure that a company can’t keep a name forever unless it actually uses it.

The infamous (between trademark holders, at least) Section 8 of the Lanham Act 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 the company fails to provide that kind of documentation, the USPTO simply cancels the trademark and it becomes fair game.

Former Activision parent company Vivendi Games provided its latest declaration of use in 2011 (the current trademark was first registered in 2001), using the Crash Bandicoot Action Pack for PS2 as its specimen.

The next date on the calendar is quite far in the future, 2021, but by that date Activision will definitely need to do something with the franchise, or they will incur in the serious risk to lose the trademark.

Currently the publisher sells four Crash Bandicoot classics on the PSN, but they’re all exclusively for PSP and PS3 (they’ve been proven to run on Vita, 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).

Currently, I don’t see any of those applying to the Crash Bandicoot franchise (most definitely “Decreased Demand” does not apply), so finding an excuse for the lack of use of the trademark would be fairly difficult for the publisher.

There’s actually a relevant precedent for this: earlier this year Sega lost control of the Shen Mue trademark in the U.S. because they failed to file their declaration of use (since they weren’t really using it) and didn’t find a valid excuse to justify the lack of thereof. To this date they still didn’t manage to get it back, and the only way to do so would be to actually do something with the franchise.

While losing the trademark wouldn’t mean that anyone could freely do a Crash Bandicoot game, Activision has proven quite protective with its intellectual properties in the past (even overprotective at times), so it’s quite unlikely that they’re willing to just let it go. Of course they could also attempt to sell it in order to make a last profit out of it.

While 2021 isn’t exactly close at hand, games aren’t developed in a day, and in order to be a valid specimen a product (unfortunately it doesn’t need to be a game, but just something fitting one of the multiple classes of the trademark) needs to be already on the market. It might take time, but Activision can’t just sit on Crash forever without doing anything with it, and that’s somewhat comforting.

Join the Discussion

  • Rower

    Activision doesn’t deserve crash bandicoot.

    • twinspectre

      Activision doesn’t deserve our Money , but hey lets buy Call of Duty and Destiny right ? -_-

      • Anarky

        Well I’m not buying COD but Destiny just looks too good to pass up. I mean it’s made by Bungie man.

        • twinspectre

          so you still give support to Activision good logic man

          • Vious

            his logic is like:

          • Creed

            And now xbox fans are shitting on Bungie because they went multiplat.

          • twinspectre

            fanboys on both side are pathetic

          • Creed

            That we do agree on.

          • Vious

            nice stealth goalpost movement….nobody realized it’s been moved

          • Creed

            lol the truth is like holy water to you ain’t it? it just hurts so bad.

          • drzfr3shboialex

            Everybody is a strong word. I’m a PS+ gamer and I’ve NEVER bashed bungie. I don’t like Halo (and yes I’ve played it), but Destiny looks and is amazing (played the alpha).

          • twinspectre

            go ahead keep give support to Activision , do you realise that you’re keeping give them your Money ,and your money means Supports
            you’re not Supporting BUNGIE you’re supporting Activision

          • Sucka Free

            Who gives a f*** as long as I get to play an awesome game.

          • twinspectre

            sure , sure , who gives a f*** when you’re giving them your arse ;)

          • Sucka Free

            Yeah, I could tell you lots of things about MS too, but you’re too much of fan bitch to believe it

          • twinspectre

            im not a fanboy im just a guy with a logic ;)

          • Sucka Free

            You’re just the guy with a stick up your @ss

          • twinspectre

            stop describing yourself , because you’re the one that is offering for an A**l beep ;)

            here Activision take my money :)

            “Who gives a f*** as long as I get to play an awesome game.” yeah i get it what kind of game you’re talking about ;)

          • Sucka Free

            Yeah, yeah, yeah…typical attempt at reversal. I’m a gamer, I’m not some kind of armchair analyst like you are. You don’t like it, don’t buy it. Trust me, those of us who do wont miss you at all.
            But don’t pretend that you are trying to make a stand on some point of morality, not when you give your money to other companies that are just as bad.

          • twinspectre

            im sorry , but for this gen i will NOT give my money to greedy company that see Gamers like B**** ;)
            well , at least im trying to make an improvements , but with some mo**** we cant see Change
            and please don’t call yourself a GAMER because you’re not a GAMER you don’t know why ?? well if you’re a GAMER why you keep give Money to Company that don’t give a Flying F*** about Gaming
            I’m a Gamer and as a GAMER i demand RESPECT from them
            they can’t treat me like S*** because im a Gamer , as a GAMER i Want the BEst for GAMING
            as a GAMER i stand up against Greedy Company

            you’re not a Gamer you’re only a Casual and Casual Gamers don’t care about GAMING at all

          • Sucka Free

            But you’ll give your money to MS, EA, Sony, Nintendo, Ubisoft, etc?

            I care only about the games. If a game is fun, I buy it and play it. I don’t give a shit about corporate politics or finances.

            Also, I don’t care about your weak ass definition of “gamer”

          • twinspectre

            i will not support MS,EA,Sony,Nintendo,Ubisoft etc.
            (i care about games) yes i care about games too , but i care about Real Games and not the modern Cheap Games (Go Here, take Cover, Follow this Path , Cinematic Experience, Regeneration health) this is not a Game , modern “Gaming” is a Movie like Experience and it has nothing to do with Games

          • Sucka Free


            (Go Here, take Cover, Follow this Path , Cinematic Experience, Regeneration health) this is not a Game , modern “Gaming” is a Movie like Experience and it has nothing to do with Games

            As if that had anything to do with what we were talking about. weak strawman is weak.

          • Sucka Free

            Also, you can “demand” respect all you want…some of them may even pretend to give it to you….as long as you give them your money ;D

          • twinspectre

            i think you’re too stupid to not understand

          • Sucka Free

            I think you’re too stupid to even construct that sentence correctly

          • twinspectre

            you’re just a stupid guy

          • Sucka Free

            yeah yeah, this must be the part of the trolling where you fall back on name calling and personal comment since your point has failed you. BTW, if you were really trying to insult me, you would have said., “I think you’re too stupid to understand” not:

          • twinspectre

            well, mr. stupid you should know the world speaks other language ;)

          • Sucka Free

            More name calling, yawn

          • Sucka Free

            You’re not very bright, are you?

          • twinspectre

            you’re a fanboy , are you ?

          • Sucka Free

            That answers that question.

          • twinspectre

            do you play only Sony’s platform ?

          • Sucka Free

            nope

          • Anarky

            Logic? bitch please you get mad at people because they like a game you don’t like, you’re the last one to talk about logic.

          • twinspectre

            im not mad at people buying games i don’t like
            im Mad at people supporting Greedy Company , is that hard to understand ?

          • Anarky

            Youre first comment towards me gave off that vibe a bit especially when you said “Destiny deserve our attention when the game is a copy of Borderland and Halo ? wooow”.

          • Anarky

            Hey crazy but maybe people like good games.

          • twinspectre

            again , im not talking about Games , im talking about people giving money to greedy company

          • Anarky

            If the game is good he’s free to buy it so lay off. It’s not like he said he’s buying COD or something.

      • Rower

        I kind of agree. I like destiny. But I’m more into naughty dog, atlus, kojima productions, square enix and capcom.

      • Porcu Peth

        i’m not buying either of those

      • Young Franky

        That’s why im pre-ordering off amazon for the beta then canceling it.

    • ipot_04

      Naughty Dog, however, really deserves to make a new Crash Bandicoot game.
      Crash Bandicoot > Spyro > Tomba > Knack

  • Jerry Hu

    Give it back to PlayStation right now!

    • Vious

      no

      • Delsin Rowe

        and why? please, please tell me who are you to say that? lol
        are you from activision?i don’t think so pal.

        • Vious

          because the game is multiplat. giving it to sony would make it exclusive to sony platforms. what happen other console players shouldn’t be able to play to the game too?

          • theodor70941

            It was originally a Sony exclusive, also… Activision killed Crash the moment they bought it from Sony.

          • Vious

            activision never bought crash from sony. jeez man, you people are going on about a game you know nothing about.

          • theodor70941

            Crash was originally a trademark by Universal Interactive that Naughty Dog licensed to develop a game. And who owns Naughty Dog? Sony does… http://tsdr.uspto.gov/documentviewer?caseId=sn78797478&docId=APP20060126160930#docIndex=11&page=1 Hoever in 2008 they dropped the trademark and made it into a abandoned IP. And that led to Vivendi picking up the rights to it http://tsdr.uspto.gov/documentviewer?caseId=sn78797478&docId=CCA20070430141001#docIndex=4&page=1 And guess who used to be owned by Vivendi…………. Activision! MY point still stands, Sony used to own the license to develop and publish Crash games.

          • Vious

            sigh, you’ve being a bit stupid at this point pal.
            the two documents you’ve linked to stated that universal owns the IP from the get go 2006.
            daughty dog was just one of the many studios that worked on the game pal.

          • theodor70941

            Did you even understand what I said? Plus, there’s two links in there.

          • Vious

            ok, if you believe so lol

          • IHateTrolls

            Naughty Dog created the franchise. It’s worlds apart from “many studios that worked on the game.”

          • PlayMatt

            Naughty Dog is no just one studio that worked on the game. It’s the Studio that CREATED the whole game and it’s universe…

          • Justin Schroeder

            Technically your both wrong in different ways :D. Sony didn’t own Naughty dog until after they stopped working on Crash in 2001. Universal did technically own the IP, (much like Sony owns Ratchet and Clank) but naughty dog still developed the game. They were much more than just some studio that worked on it with universal.

          • Delsin Rowe

            maybe sony bought it already. maybe this is all a big show.
            we don’t know what happen in the the future.
            so it’s better to wait and see what happen.

          • Vious

            ok, “fair” enough.
            well, get ready for the “big show”

          • Delsin Rowe

            i will.
            thanks bro :D

          • Sucka Free

            You mean the game is non-plat as it is not appearing on any platform. In typical fanboy fashion, you would rather the IP die rather than appear on the platform that you don’t own. I bet you were one of those haters that got all upset when Bayonetta 2 became a Wii U exclusive

      • They Call Me Senpai

        You’re obviously against good games.

        • Vious

          the game is multiplat. you are pulling at straws.
          what does that have to do with me being for or against good games?

          • PlayMatt

            Nobody wants the game to stop being multiplat. Everybody just wanna see it getting back to it’s roots with the company that originally made it, Naughty Dog.

        • Rower

          He racist. He probably only plays on pc by himself

      • Negi Springfield
        • Vious

    • MrSonicBoom

      Technically Playstation never owned it. The games were just exclusive to the PS1. But I agree activision should sell it to Sony so they can revive the franchise.

      • PlayMatt

        But the company that originally made those games belong to PlayStation!

  • They Call Me Senpai

    I bet Sony is just sitting there…waiting for that cancellation.

  • This World Begins With Us

    I have a feeling that we’ll be seeing a new endless-running mobile game very soon…

    • BadPiggie123

      Oh no.

  • superkarma

    It really is a shame how things played out. Mark Cerny gave Naughty Dog a chance when he worked at Universal. Naughty Dog was on the brink of bankruptcy when they showed off a game to Cerny/Universal. He liked what they had to offer and signed em up for publishing deal for a few other games. The first game out of that deal was Crash.

    Universal still owned the rights to Crash due to that publishing deal Cerny made with Naughty Dog. Universal eventually got bought out by Vivendi, who eventually got bought out by Activision. Activision made out big time with that buy out and it played a major role in their shot to “stardom”. If only Cerny worked for Sony at the time…things would have been much different. Oh well.

    It just amazes me how dodgy Activision has been regarding this whole thing. I remember last year they wouldn’t even admit they still owned the IP. It’s ridiculous. I’d rather Naughty Dog owned the IP (of course) but at this point, I just want someone to do right by the franchise. Naughty Dog has already said they have some great ideas for a Crash game…so let them create one, Activision. Keep the damn IP…but let something happen with it already. Damn.

    • Mozef Kaddas

      Well Said, I couldn’t agree more.

    • Justin Schroeder

      It would never happen as long as Activision owns the IP. Sony self publishes all of its studios games. So Sony wouldn’t allow naughty dog to publish something with Activision.

  • Vious

    crash going multiplat?

    • superkarma

      It has been multiplat for a decade now. Get with the times, troll.

      • Vious

        hahaaha

        • superkarma

          Yeah, your ignorance is indeed amusing. :)

          • Vious

            too bad for you i’m the only one having fun out of this

          • superkarma

            I always have fun when replying to you, because you’re almost always wrong and/or have no idea what’s going on.

            Anyways, so much for ignoring me, right? :)

          • This World Begins With Us

            Get a room, you two. I can sense the sensual tension from here!

          • Vious

          • This World Begins With Us

            LOL! Movie?

          • BlackestNight63

            Half Baked.

          • Rower

            You’re having fun — it won’t last you long. Sony has a few surprises : D

          • Vious

            and what does me having fun has anything to do with sony?

          • Rower

            You’re having fin in regards to the crash bandicoot issue, which is affecting the fan base and sony. Durrrr

          • Vious

            nope, i’m having fun because people seems to be real upset over activision owning a certain IP. the game has been released on xbox, ps2, xbox 360, ps3, psp etc. what hell you guys want more? lmaoooo
            I mean given the track record doesn’t this mean the franchise will also come to current gen?
            ahahah you people are weird sometimes.

          • Rower

            An IP that was orgianlly Sony’s and at that time the IP was at it’s prime. Obviously, it’s been on Sony consoles still. The game lost it’s “mojo” when given to acticrap. So regardless, you’re enjoying yourself in regard to my previous comment. Durrr

          • Vious

            lol you’ve turned into a strawman sir. stop pulling at straws

          • Rower

            Make sense, please.

          • Vious

            guy/girl/it the IP never belonged to sony again, stop pulling at straws.

          • Rower

            How can you be so sure? : D please provide facts.

          • superkarma

            I’m afraid he actually is right with that one. Universal owned the IP from the get go. Universal got bought out by Vivendi, who got bought out by Activision…and now here we are today. Sony just had an exclusivity deal for the first few games.

          • Rower

            A particular Sony trailertrailer from a while back, had an interesting easter egg of crash. Activision and Sony are just pulling our legs — I just know it. Lol

          • drzfr3shboialex

            Agreed. Plus Sony said they’re bringing back 2 classics people loved. All these rumors of Crash going to Sony as well, wouldn’t be surprised to see Sony announce a ps4/vita crash exclusive. They did say they will announce it when all the paperwork clears up.

          • PlayMatt

            They didn’t allow Crash Bandicoot to be on PlayStation All-Stars Battle Royale neither in the 30th anniversary of Naughty Dog, what makes you think they are willing to sell it?

          • Rower

            Because acticrap is full of rage after sealing the deal with Sony — they sold it back. Now, acticrap is charging it’s maximum energy over 9000 or something and releasing lv 20 energy at us to ko us into the infinite “We held on to crash this long suckers”

          • Vious

            wow much funny

          • Rower

            You need friends!

          • superkarma

            What does being multiplat have to do with anything? People aren’t upset over it being multiplat. People are upset that Activision is sitting on the franchise without doing anything with it…and refusing to let anyone do anything with it either. They’ve already cancelled 2 Crash games…1 from a 3rd party dev, the other from an Activision dev.

          • PlayMatt

            1 – The games since Activision owned the IP have been pure s#it.
            2 – There was no Crash Bandicoot game on PS3.

    • Mitch

      It’s been a multiplat since ages. Crash Bandicoot: The Wrath of Cortex was on PS2, Xbox and Gamecube in 2001.

    • Mikail

      I thought you are a bit mature, but seeing you trolling like this i loose some respect for you. well my self doesn’t care, and most of Playstation fans can live with out it. Just count how many times Playstation f create new IPs on their Platform. Unlike Xbox with Halo this, Halo That, Halo blabla…bla, Lol

      • Vious

        good. now lets do the halo dance

    • Jecht_Sin

      Indeed that was not developed by Naughty Dog anymore and it has got bad reviews. The real Crash Bandicoot everybody loved was the one on PSOne.

  • Mitch

    Can Sony please buy it?! I doubt the IP is expensive when you look at how the most recent games have sold.

    • PlayMatt

      1 – Activision needs to want to sell it.
      2 – They can charge as much as they want to.

      They didn’t allow Crash Bandicoot to be on PlayStation All-Stars Battle Royale neither in the 30th anniversary of Naughty Dog, what makes you think they are willing to sell it?

  • Wargreymon559 .

    Why do i feel like this is one big ploy so we dont catch onto anything??

  • Vious

    lamooo this thread

  • Carl

    Please Sony, buy Crash Bandicoot back from Activision. I don’t want to see him participating in a Skylanders game, like Spyro the Dragon.

  • CervantesPR

    I really hope sony bought the crash IP back, media molecule should make it. That picture on that ps4 launch trailer is too much of a hint. Gamescom?

  • http://OwlGames24.com/ Tom Neil

    It is really a bad news but you can always cheer up with free online flash games in http://www.OwlGames24.com/

    • Edge_PT

      Stop spamming please

      • theodor70941

        Just flag him.

  • Sunzy

    Activision don’t deserve it, With all due respect Microsoft don’t It belongs with Naughty dog and sony and you CANNOT take that away

  • Jacques Onterio Thomas

    What happened to the news back in Decemeber 2013 about ACTIVISION not having the crash bandicoot ip no more? I remember dualshockers making an article about it, so does this mean that it’s not true?

  • Mikail

    No just let it die, SONY always create new Ips, unlike Microsoft and Nintendo.

  • Nordu

    So silly to hear about people not supporting a company. Big deal if a company had a bad game in the past or did something you didn’t like, shouldn’t choose to opt a good game out for such a reason. Only time I would do such a thing is if the company did some terrible crime.

    • Vious

      +1

    • superkarma

      Agreed. I don’t like many companies for their business practices/ethics/etc, but I wouldn’t force myself to miss out on a good product of theirs just for the sake of boycotting them. I’ve disliked Microsoft for many years now, but still bought a 360 and would still buy an X1 if my buddies were going to as well. I’ve also disliked Activision for many years, but still bought COD every year and will be buying Destiny now.

      “Voting with your wallet” is nice…in theory. I’ll let those who really want to hold true to that go for it. I’ll continue enjoying the games/products that I like and hope for the said company to eventually wise up.

  • Cassive

    Couldn’t Sony just throw a whole heap of money at Activision for the rights to Crash Bandicoot?

  • Zangetsu777

    Sell it back to Sony!!!!!!

    • Homer Ruglia Beoulve

      “If the price is right.”

  • Vious

    done with this thread. have fun guys…..or is it going to die when I leave. anyway, 1.

    • Rower

      Everyone here hates you.

  • kevin

    He does realize that this is a gaming publisher who makes money off games , so why does he think they will not be prepared to do what is necessary to maintain ownership of it all .

  • Solid Snake

    I’m surprised Activision hasn’t milked the Crash Bandicoot franchise like they do with all their IP’s.

  • RealityCheck2013

    Coming soon then -

    ‘Call of Duty: Crash Bandicoot’ :D

    + I DON’T want a Activision Crash game i want a SONY PS4 Exclusive Crash game really :(

  • Guoest

    I have a question, it has nothing to do with the article, but can u guys tell me if its cheaper to buy the ps4 destiny bundle from amazon or buy it from a gamestop or wal mart?

    • Sucka Free

      Just guessing, but I doubt that there will be a difference in price wherever you buy it

  • DemonFenton

    My problem with Activision is that they hold back more than just the Crash IP. They just hold back many others or even worse make those games that’s not like the original IP. My advice is if you really that what Activision does with Crash IP by holding it hostage than don’t buy simple as that.

  • TheFatDeliquent

    Given the reputation of the company, I hope Activision doesnt make a low budget sucky mobile Crash game just to keep the trademark. I love Crash but Im not keen of playing it if its made by other studios…

  • Mozef Kaddas

    Activision Needs to just let it go this games’s rights, if there are not doing anything with franchise.

  • Buk Lau

    Just sell To The Rights To Sony Activision,
    You already merged nervesoft with the COD team…..

    Your getting there I only hate EA…..but you guys are getting close to my hate (dont buy) list

  • cookie

    Hopefully they won’t make it like, spyro with skylanders….

  • Alter

    wow.. GJ activision multiplats of literally nothing .. LOLOL

  • Natan Cifuentes

    I would love to see Sony have the rights again just to see them use Crash in PS4 commercials. Thou i highly doubt it with all this propaganda going around.

  • Karl Smith

    Activision might as well sell him to Sony anyways. Besides, they are doing jack to him other than releasing Call of Duty every year!

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