Some of this may seem repetitive from my last article, but I wanted a nice concise spot to steer people to the basics of trademark law.
Despite the common vernacular, there is a difference between copyright, trademark, and patent. Copyright protects your art assets, scripts, stories, and code. It takes hold as you create something, for free. Squiggle a design on a chalkboard? That image is copyrighted. Patents are to protect inventions, and if you are reading this article you almost certainly don’t need one. They are extremely expensive to register, and even more so to enforce.
That leaves us with trademarks. Trademarks protect your game title, company name, and logo. They are used as a shield against other people “riding your coattails” to success. If everyone could call their burger place McDonald’s, what would be the point of all the marketing and quality control the franchise did? (yes, McDonald’s does quality control.)
Let’s stay with McDonald’s for a second to learn exactly what trademarks protect. They can protect your name and your logo, but those are two different marks. McDonald’s would have their name trademarked, as well as the golden arches. This stops someone from calling their place “Joe’s Burgers” but still using the arches in the background. Sure, they didn’t use the actual name, but they are creating consumer confusion, and that is what trademarks try to stop.
I’m sure you’ve noticed the small ™ symbol next to names, as well as the small (r) logo. The ™ is something you can put next to your name for free. It requires no registration and it is the basis for “common law” trademark protection. It tells the world you are meaning to establish rights with that mark, and you should absolutely use one if you can’t afford to register. The problem is, the ™ symbol only offers regional protection. Since we are dealing in the world of video games, that is almost useless. There is no New York version of Steam or Houston version of the app store. Instead, these things are all national, and in most cases international. This means if someone has nationwide protection then they trump your little regional ™.
How does one acquire national protection then? You must register with the USPTO. The fee is 275 per class, which I will discuss exactly what a “class” is in a moment, and per mark. This means, going back to our earlier example, it would cost 550 for McDonald’s to register both their name and their logo. It’s two marks, so two fees. Also, I can’t recommend enough to not do this yourself. The search to find conflicting marks alone is extensive and if you think you are doing it right, you probably aren’t.
A common misconception with trademarks is that people think you are trying to “own a word.” That is true, but only to a point. The way it works is you are trying to own a word within a “class” or an “area of goods.” That means you are trying to own your game title within the context of video games. If you also want to protect it on bubble gum wrappers you’ll have to pay another fee.
These fees, and their associated lawyer costs can add up quickly, of course. But I really think of all the things you can get, this is one of the most important and should absolutely be part of your startups costs if you plan on making money with your game. Hire an attorney and have them make sure the search is done properly and your application is as best it can be. There are no refunds here, so don’t throw your money away.
If you honestly and truly can’t afford a lawyer but want to attempt this on your own, my best advice to conduct your own search on the USPTO website is to:
1) Think of names that could sound kind of like yours phonetically.
2) Use a thesaurus to come up with names that mean the same thing as yours
3) Use Google translate to check your title in a few different languages as well
4) And the safest route of them all, make your company or game name something REALLY unique. Less of a chance of disputes that way.
None of this is surefire if done yourself, but it’s a lot better than most do when they just type their video game in Google and smile when no exact match pops up.
So keep all of this in mind when creating your game. A trademark is as important as your art and story, because if you don’t properly protect yourself you might lose everything. There are guys out there with lawyers on a payroll who are bored enough to send you a C&D, no matter how small you are. Protect yourself so you don’t get scared when you receive one. You worked hard at your game, don’t let someone else bully you into taking it down.
-Ryan Morrison, Video Game Attorney