Yes! A trademark is an essential part of protecting your business and is especially critical for high-tech innovators in the competitive gaming industry. Best of all, a trademark registration does not have to be expensive or time-consuming. Artaev at Law has partnered with the expert trademark attorneys at Mighty Marks to offer a fixed fee, all-inclusive trademark service.
But what is a trademark exactly? And why do you need one? Do you need one now or later? Can you rely on a U.S. trademark in other countries? Read on:
So what is a trademark?
A trademark is your brand. It can be the name of your company or your product, a slogan, or a logo. Designs or other unique brand elements can also be trademarked. Trademarks, along with patents and copyrights, comprise valuable company intellectual property rights that distinguish and protect your unique product and innovation. The purpose of trademark law is to prevent brand confusion – for example, to stop unscrupulous competitors from copying your brand name and misappropriating your customer goodwill. In the highly competitive gaming space, this is particularly critical, and as explained below, a registered trademark is essential to an effective legal response.
How do I pick a trademark?
There are different “strengths” of trademarks that vary as to the level of protection they provide. In general, the law does not favor trademarking generic terms or product descriptors. For example, if you made a solitaire game and called your game “Solitaire,” your trademark application would likely be rejected. Descriptive marks are those that literally describe the product – for example “Fun” puzzle games or “Challenging” platformers. These descriptive trademarks generally cannot be registered unless they have acquired a secondary (distinct) meaning.
Suggestive marks are those that are not merely descriptive, yet hint at the nature of the product. For example, the name “Playstation” suggests that the brand is home gaming console – and is sufficiently distinct from the generic or descriptive category of marks to be given protection. The strongest category of trademarks are arbitrary and fanciful marks. Arbitrary marks are those that use a word out of context or to describe something completely different than the word’s ordinary meaning. Blizzard to describe a software company is a good example. Blizzards are weather phenomena that have nothing to do with games – and therefore the mark “Blizzard” has acquired a distinct, protectable association with computers. Fanciful (or “coined”) marks are completely new words that have no separate meaning other than their brand. For example, NVIDEA graphics cards or perhaps the xBox home console (although it could be argued that xBox is suggestive.)
Experienced trademark counsel can assist with choosing the right trademark for you and evaluate strengths and weaknesses.
Why do I need a trademark and do I need it now?
Early registration translates to stronger protection.
Games, gaming, and software in general are highly-competitive industries. Once you have your game or product out there, there is not much precluding a competitor from blatantly copying your design and profiting off your hard work. In the wrong hands, your brand can suffer irreparable damage and dilution of your business reputation. For example, if you have a game called Minecraft that you painstakingly developed, and someone copies your game and calls it “MineRcraft” what are you supposed to do? What if MineRcraft is a terrible product, but customers mistakenly leave negative reviews for Minecraft? Or worse – what if MineRcraft takes off and becomes more popular, simply because of your investment into the original game?
Another nightmare scenario for any developers is receiving a cease-and-desist from a competitor attacking your brand. Trademark registration with the USPTO is critical evidence in any sort of priority dispute that may arise. Also, while it is technically possible to register a trademark and obtain priority after-the-fact (retroactively) – it is much cheaper and simpler to do it at the outset. Therefore, it is best practice to file for a trademark registration as soon as possible. The benefits of a properly registered mark far outweigh the negligible costs.
Can my trademark protect my brand in other countries?
Yes, provided that you also apply for international registration. The USPTO provides the forms and application process for an additional fee. Under the Madrid Protocol (which is an international treaty for the uniform protection and registration of trademarks), a registration through the USPTO can also be registered in other countries with a single application.
What is a benefit of international registration? International registration allows you to use a foreign country’s laws and judicial resources to enforce your mark in that country. A USPTO registration still allows enforcement through a U.S. based court, even if the infringer is in a foreign country. However, even if you prevail, you might not be able to enforce the U.S. court’s judgment abroad. An international trademark registration opens up a number of other enforcement options. If you are interested in international trademark registration, this is something to discuss at your initial consultation.
Disclaimer: This guide is for general informational and promotional purposes only. Nothing herein constitutes legal, investment, or tax advice. Every situation is different and faces its own unique set of challenges. Do not take any action or sign any contract until you have obtained specific guidance from a qualified professional.
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