Reusing game name
Hi there,
I'm working on some small game which I'd like to publish eventually (for PC plus possibly other platforms) but I have recently discovered the name I was going to give the game has already been taken.
To be more specific, I was planning to use name "Puzzled" for the game.
Unfortunately I found that this name has already been used in 2001 by the Conspiracy Entertainment company for some Nintendo's Gameboy Color game. The game is not even listed on that company's website probably because it's not considered relevant anymore.
Anyway, here's pretty much all the information about the game I was able to find on the internet:
http://au.gamespot.com/pages/image_viewer/boxshot.php?pid=580475
http://www.gbcolor.com/game/rom-12/puzzled-597/
I have verified that this name hasn't been trademarked in USA or UK which is good for me, but I'm still not sure if there's going to be any problems if I release the game with the same name.
I've emailed Conspiracy Entertainment about that but got no response.
Also, is that of any importance that the game would not be any kind of competing product (different release platforms)?
Thanks in advance for any hints.
I'm sorry if I wasn't clear about that, but I was trying to say that this name has _no_ trademark owner. My only concern is that Conspiracy Entertainment has previously used that name for their game (but they didn't trademark it or the trademark has already expired).
So, if I wanted I could apply for that trademark myself, at least in USA and UK. I probably wouldn't want to do that though.
So what does your attorney say?
You do have an attorney, don't you?
(Hint: get an attorney. See what he or she says.)
Originally posted by tsloper
So what does your attorney say?
You do have an attorney, don't you?
(Hint: get an attorney. See what he or she says.)
Hmm... 
No I don't and I don't plan to have one until some time later which is because I'm just a one person game-dev team with very little funds.
Spending money on a good lawyer just to ask him that question would probably not be the best business decision in my case. I may eventually do so, but I thought I'd ask people around first.
Find another name. It is not worth the risk or potential hassle.
Tom B
Originally posted by maciejs
I'm sorry if I wasn't clear about that, but I was trying to say that this name has _no_ trademark owner. My only concern is that Conspiracy Entertainment has previously used that name
First, can I just clarify what people mean by "Trade Mark"? I'm not a lawyer, but AFAIK (based on having been the person the lawyers reported to at a previous employer)...
IF you register a trademark, then that that is a "Registered Trademark". Very simple, no arguements. Little R in a circle designates Registered Trademarks, and they show up on registers.
IF you use the name as a trade mark, then this also confers rights, but you won't see the name in any trademark registry. This can usually be identified by the use of the "TM" letters in superscript. (By doing this, you are claiming rights to the mark.)
Even IF you do none of the above, if you publish or promote a product, or run a business, with a particular name, Good Will accrues to that name, and you can justifiably go after someone who might be cashing in on that.
Second...
If you go to a trademark attorney and get a search done, they should not only look at the registerd, but will (should!) also report on products on sale, domain names, etc. - anything which "might cause reasonable confusion in the mind of the consumer" or indeed just give abigger company the opportunity to sue.
Third...
In this case, even if Conspiracy never used the "TM" lettering, nor registered the mark, the fact that they have commercialised a product with the same name might give them (or their legal successors or assigns) grounds to go after you for cashing in on "their" name. They would argue that they built value in the name, which you are now exploiting. Whether they would be bothered, is unclear. Whether you would be able to argue that their name has no value, also unclear. Whether they would be able to throw more money at lawyers than you, unclear. Lots of things are unclear, and if you go this route you're going to want to talk to a lawyer, professionally, not just post on a forum.
If it were me, I wouldn't want the trouble or expense or risk - I'd just pick another name.
Originally posted by maciejs
I'm sorry if I wasn't clear about that, but I was trying to say that this name has _no_ trademark owner.
Correction - they have not registered the mark. That doesn't mean they can't claim one based on their use of the name or...
So, if I wanted I could apply for that trademark myself, at least in USA and UK. I probably wouldn't want to do that though.
.... object to your application. If they do that you then have two options:
1. Drop the application and pay to register a different name, or
2. Pay rapidly increasing legal costs to argue the case.
Neither of these is as cost effective as picking a new name now.
Thanks guys for all suggestions - they were very helpful!
I guess I'm now convinced changing the name is the way to go.
Originally posted by NotAthensNorGreece
If you go to a trademark attorney and get a search done, they should not only look at the registerd, but will (should!) also report on products on sale, domain names, etc. - anything which "might cause reasonable confusion in the mind of the consumer" or indeed just give abigger company the opportunity to sue.
Searches are usually performed to a budget, with parameters commensurate with the budget: cheapest for a search of the local (national) Register of Trade Marks (which will result in a report with identical/similar registered marks), most expensive for a comprehensive (never garanteed as such) global search of registered and non-registered-but-identifiable (products, domain names, etc. as you rightly point out) identical/similar marks (the "Freedom To Operate" grade).
You're talking one or two orders of magnitude in cost difference.
Macie,
You should name your game something else.
Or you can continue your efforts to obtain a license from the trademark owner -- see if you can find a phone number (don't just rely on email).
Your attorney will surely concur with this advice.