Six Days in Fallujah: The Timeline

When news broke that Konami would no longer be publishing Six Days In Fallujah, it made me curious about the path it took to get as far as it did. This is what I found.
As a former Intellectual Property professional, I started my search for info at the United States Patent & Trademark Office site. While not as eloquent a tool as the one I used back in my Trademark Researcher days, the USPTO Trademark search functions make do for basic research like this. I also consulted MobyGames, Wikipedia, and the sites of all of the companies mentioned in the following.

Along with Konami and Atomic Games, Destineer Publishing was involved throughout the lifespan of Six Days in Fallujah. Destineer is the least known quantity in the timeline that follows, and a little background info is useful to have on hand. According to Mobygames:

Destineer was founded in 2001 by former Bungie executive vice president Peter Tamte. Destineer’s CEO, Paul Rinde, was a senior vice president of Atari and a co-founder of the WizardWorks Group.

Destineer develops and publishes videogames for various consoles, handhelds and personal computers. The company develops highly realistic training simulations for the world’s leading military and intelligence organizations. Destineer is led by executives who helped grow Bungie, Red Storm, and Atari into industry leaders, and has strong financial backing from a variety of notable investors, including In-Q-Tel, a private venture capital firm funded by the US Central Intelligence Agency.

So, keeping all of that ear-perking info in mind. Let’s start:

• November 7, 2004 – December 23, 2004: The Second Battle of Fallujah occurs.

• February 4, 2005: Destineer Publishing filed for the word mark “Six Days in Fallujah,” with serial number 78560981. The goods & services listed are: “COMPUTER GAME SOFTWARE FOR USE WITH PERSONAL COMPUTERS AND VIDEO GAME CONSOLES; DOWNLOADABLE COMPUTER GAME SOFTWARE FOR USE WITH CABLE AND SATELLITE ACCESSIBLE VIDEO CONTROLLERS AND PORTABLE VIDEO DISPLAYS.” There isn’t much special in this description, hundreds of other products share very similar G&S terms.

• May 6, 2005: Destineer Publishing purchases Atomic Games (developer of the Close Combat series of military games.) At the time the two companies were collaborating on Close Combat: Red Phoenix and Close Combat: First to Fight. There’s no way to tell if at this point Destineer Publishing Corporation was planning to develop Six Days in Fallujah at Destineer Studios (the original in-house development team) or at Atomic.

• November 1, 2005: The trademark Six Days in Fallujah was published for opposition. This means that the mark was put in a weekly journal which lists all of the new trademarks that have been accepted into the federal registry during the prior week. This allows IP attorneys and experts to see if any of the marks owned by their clients are being infringed upon, and object when they are. It was successful in passing (no one raised opposition.) At this point, Destineer would be required to show that they were selling a product nationally (or producing a product to sell nationally in the close future.) In the US trademark system, a mark has to be used in order for its owner to claim it: you can’t indefinitely sit on a mark because you think one day it will be worth something to someone.

• January 8, 2009: Destineer Publishing filed for the word mark “Six Days in Fallujah,” with serial number 77645437. This new filing lists the exact same goods & service terms. Note, at the time of this filing the original trademark was still active. However…

• February 23, 2009: The original filing (serial number 78560981) gains “Abandoned” status. When a mark becomes abandoned it is able to be used by anyone without (as much) fear of infringement law suit. In order to reclaim status, exclusive and active use along with a connection to the original applicant must be claimed. Destineer obviously met those requirements when they reapplied for the mark a month before it was abandoned. Presumably they refiled because they wouldn’t be ready to publicly show the product by the February abandonment date, but would within the new filing’s life.

• April 5, 2009: Six Days in Fallujah is announced. Konami is the publisher, Destineer subsidiary Atomic Games is developing. Destineer isn’t mentioned. Maybe Konami came in to give the project extra cash or technological resources that would allow the game to be completed quicker or at a higher quality. A rift is clear between the two sides: Konami talks about publishing a piece of entertainment while Atomic Games President Peter Tamte (who you might remember is the founder of Destineer) talks about being asked by Marines to create a game about their experiences. He claims “compelling” and “insight” as the two terms that best summarize the game he and his team are making.

• April 27, 2009: Six Days in Fallujah is canceled. At least, as far as Konami is concerned. Only 22 days after we get word of the game, publisher Konami has buckled under “opinions sent through phone calls and e-mail.” They talk in the past tense, noting what they had “intended” to do with the project.

• April 28, 2009: Today, that second filing (serial number 77645437) will be published for opposition in spite of Konami’s pull out.

So, where does that leave us. Will Atomic Games shop the project around in an attempt to find a new publisher? Will Destineer Publishing try to foot the bill? As soon as we know, we’ll let you know. In the meantime, keep an eye on OLC in the coming days. We planned a series of editorials about the Six Days in Fallujah to go live this week, and despite the change in release plans we’re still going forward with our discussion of the topic matter and the sensitivity around it. Maybe now its even more important that such a debate occur.