So long as they don't claim to be Android and try to access the Android Market I wouldn't call them Android fragmentation, but that's why we have the term fork. But's that's all beside point because Android does have plenty of fragmentation that does it make difficult for consumers and developers alike.
Actually, there are countless posts by developers who say that while yes, Android has fragmentation, it's not the huge deal everyone says it is.
Just a few examples:
Mika Mobile (Battle Heart): http://mikamobile.blogspot.com/2011/06/android.html
Angry Birds: http://www.phonearena.com/news/Angry...tation_id15593
Meridian Apps: http://nfarina.com/post/8239634061/ios-to-android (Great overview of differences, positive and negative)
There is fragmentation, but it's not game breaking. The real problem is that some companies are using the fragmentation politically (IE tegrazone, Netflix, Hulu support) These are INTENTIONAL cases of fragmentation that would not exist otherwise.
And Gameloft can DIAF over their billing practices.