Naming your game/studio (legal issues)

[Parallax Panda]

So like the title says, I want to discuss the possible legal and bureaucratic aspects of naming your game and/or game studio.

Like every other thread where people are asking for legal advice, someone is bound to make the inevitable comment "don't ask here, ask a lawyer". If there happen to be any lawyers lurking that would be great, but otherwise I'd settle for the experiences and limited knowledge of others who are about to, or even better, already have made a commercial game. Because there are A LOT of commercial RM games on STEAM already. And I bet most of the devs who've made them have at the very least given this a thought when they named their own games.

Putting the discussion of what a good name is aside (that discussion does not belong here), how do YOU go about picking a name for your game that won't get you sued or in trouble in the future? Do you even care? Are RM games such a small and insignificant niche market that the chances of getting in legal trouble (because of the name of your game or "studio") are close to zero - even if you name it something like "YadaYada Legends/Saga/Destinty/etc"? ...because I do see a lot of games with titles that I can't imagine others haven't also used before in games/movies/books/comics/whatever.

Do you guys trademark or otherwise register your game titles in any way? What about studio names (assuming you've chosen not to register it as a real company)? And if you do, does that really protect you internationally? Speaking of, what IF you end up getting sued by an american game studio because of your RM game's name and you live elsewhere (I happen to live in Japan btw)? I imagine a big company would have global reach but would a small studio be able to drag you to court (in america?) if you live in Europe/Asia?

I realize these last questions in particular are even more suited for lawyers but as I said before, I'll settle for a layman's insight. Not looking for bullet proof legal advice, just trying to wrap my head around this as I'm about to name my own game (and also most likely make up a name for a "studio" (which most likely won't be registered as a real company).

Here's some additional thought of my own.
* I've a vague memory that you can't trademark titles with a single generic word because it's to "common". This might be total BS but if that is the case, I guess you couldn't be sued of you called your game/studio something like "Fantasy", "Conquest" or "John"?
* I suppose the name of your "indie game studio" (that is not registered as a real company) matters less than what you name your game when we consider the chances of legal trouble? I'm assuming this because it's the game's name that will be plastered everywhere and your made up one-man studio's name probably won't get as much exposure.
Also, reasoning by myself, unless you name this "indie studio" of yours "Nintendo" or "Sony Games" or something absurd like that, most people/companies probably don't care what the name of the "studio" is as much as they would the name of the product (in this case, the game)?

This ended up being a real text wall of a post, and if you're still reading, thank you for your time! ...and sorry.
Please do share your opinion and/or knowledge on the subject as I'd like as many people as possible to answer.

 

[Kes]

For the name of your game company, you should do a very thorough internet search to see if there is anything the same or even fairly similar. Not only legal issues, but I assume you would not want people to think you were someone else (who may, or may not, have a good reputation) and similarly they would not want to mistaken for you. Ensure that you get the name onto Facebook so that no one else can have it there, same with any other form of social media that you want to use, domain name, that sort of thing. That will also serve as a double check that the name is not in use somewhere.

Whilst you cannot copyright a title, you can trademark it. Is it worth it? Possibly not. Infringing someone else's trademark - doesn't matter where you live, you could still be sued, or issued with a C&D. Again, unless you are prepared to spend quite a bit of money having proper searches made through the various trademark bodies, a very thorough internet search is probably the best you can do.

 

[Parallax Panda]

@Kes
Being able to register one's name on the most important social platforms is a given, of course. I didn't mention it but it is good that you did for others reading this. A good start would be using something like: https://namechk.com/ (and then do some additional digging).

I too don't believe most indie devs trademark the name of their games. The risk of someone trying to screw you over in the future is probably rather small. And I assume that for a "garage-indie-dev", dragging people to court for violating the trademark might be too expansive anyway?

Shifting the focus a little. I see you've a few commercial games under your belt and one of the three in your signature, "Undefeated", has a very generic name which I assume have been used by a lot of other content creators over the years. Did the issues I'm concerned about in this thread ever cross your mind when you decided upon this name? Or... does this maybe fall under the "to-generic-to-trademark" speculation I had earlier, since it's just a one word name? I'd love to hear your input on this.

 

[Kes]

At the time I just did an internet trawl. Although I knew it couldn't be trademarked, I also didn't want to have the name if it had been used for another game. Nothing came up, though precisely because it is a generic word, I had to sift my way past all those sport items where X is undefeated, so I included things like rpg in the search terms.

 

[Dankovsky]

Heya. Lawyer here. Although you should know the law is very different in different countries so you should talk to a local lawyer first of all if this is a serious issue for you.

Regarding your questions, I'll try to keep the answers simple (lol nope lawyer stuff).
1) Do your best not to breach any copyright or trademark of large companies. If you name your company "Neentendo" and release a commercial game, there's a pretty good chance they'll throw their lawyers at you. You may not really get sued (especially if you're in a different jurisdiction), but they will swarm the marketplace (Steam or w/e) with copyright breach letters and your account and your game will likely be blocked. Most serious marketplaces will comply with copyright breach letters from large companies even without a court order. So do your research.
If your name is somewhat close to some title/company name but is not a direct breach of their copyright or an obvious plagiarism - frankly most companies won't bother suing you, they have to protect their IP, not make life of small indie devs a living hell, and their lawyers cost a lot of money, you know. But it's generally good not to take unnecessary risks if you run a business.
Regarding using common words in your game title... I'll try to give a really basic example. Can you call your game "Final Fantasy"? Nope, get sued. Can you call your game "Wonderful Fantasy"? Sure, go ahead. Can you call your heavily FF-inspired game "Fantasy Finala"? You could, but I wouldn't risk it.
2) Do you have to register your name as a trademark? Not really, but it may help. Do note that a trademark registration will only be legal in the country it's registered in, unless you go for an international registration that is much more expensive and hard to obtain.
The point of registering a trademark is to have an ability to protect your IP if somebody intentionally tries to copy or plagiarize you.
Let's say you're Toby Fox and you made Undertale (good to be you). If you didn't register it as a trademark, anyone could make and release Undertale 2 or clones of your game, right? Well, not really, because international law protects your authorship regardless of trademark registration, but having a registered trademark would make your claim much more substantial and easy to defend.
Do you see yourself in court protecting your company/game from plagiarism? If you do, get it trademarked.
Also I can't say about your country, but in mine the registration can be a bit costly and take up to a year (they have to check all other trademarks to make sure yours is unique).

My TLDR advice is:
* Don't intentionally plagiarize or copy other trademarks, especially large ones, if you don't want to take risks. Do your research.
* Don't be crazy worried about getting sued unless you do #1. Having a 'fantasy', 'tale' or other common word in title of your game or company will not get you sued, unless you're intentionally copying the style of trademarked game.
* Registering a trademark is not absolutely necessary, but is generally recommended once you're serious about your business.

 

[Izulde]

For American members, be aware that in at least some states you won't be able to just come up with a company name and start using it. You'll have to register, at minimum, as a DBA (Doing Business As). The cost for this varies from state to state - for example, my state, it's just $25. My home state it's several hundred dollars. You'll also need to get a TIN (Tax Identification Number) from the IRS, which you can do online. Doing so not only makes your business legal, but allows a small amount of copyright protection (though if you grow to any size, I'd look into formally registering/trademarking). I have a DBA for my writing business, so I've been through the process.

Oh, and as another tip: If you're having someone else design the logo, it depends on the complexity of the logo and the designer. But expect to spend around $200 for a modest complexity logo from a reputable designer.

 

[Tuomo L]

All games released become trademarked on the count that they have been released into public and are therefore automatically protected by trademark. It requires no additional paper work from you, it's automatically granted to you if the name is avaivable. If you want to make use of the circle with R in it though, you must register the trademark but it's absolutely not required, though registering brings some nice benefits. Though, just a word of a warning, registering the trademark takes about 10 years.

When you do register your business and company, it's the people you register responsibility to check that it does abide to the patent laws and such and doesn't violate anything. If there's something in the way, they'll literally tell you to change it, with maybe tips on what to change your original name idea to.


My suggestion, name it after yourself.

 

[Kes]

@Tuomo L There is a difference between trademark and copyright. Your game is not protected by trademark when it is released unless something about it is trademarked through the due legal process. It is, however, protected by copyright. It is important to keep those 2 things distinct and clear.

 

[Tuomo L]

@Tuomo L There is a difference between trademark and copyright. Your game is not protected by trademark when it is released unless something about it is trademarked through the due legal process. It is, however, protected by copyright. It is important to keep those 2 things distinct and clear.

I never did say anything about copyright. The name of the game is protected by trademark. That is to prevent that I can't for example, make A Timely Intervention 2, Time harder without running into troubles with the original IP owner. Trademark is about both consumer and developer protection and to help protect the brand image.

And yes, you do get automatic trademark as long as your game's not violating existing one. You can have an unregistered trademark and anyone who says otherwise is lying.

 

[Kes]

@Tuomo L Laws vary from country to country, and imo, we should not be giving out legal advice which might not be applicable where the reader is. It can be very misleading.

 

[bgillisp]

Right. For instance in the US what you posted @Tuomo L is actually false, we have to register and pay to get it trademarked. It is only protected by copywrite instead.

 

[Tuomo L]

Right. For instance in the US what you posted @Tuomo L is actually false, we have to register and pay to get it trademarked. It is only protected by copywrite instead.

No, in US you don't have to register it either.

"Interestingly, though trademarks are protected under both state and federal law, you do not have to register a trademark in order to have it protected (there are advantages to doing so which will be discussed below). "

http://www.thomasfirm.com/trademarks.html


Again, unregistered trademark is still a trademark.

 

[bgillisp]

Sorry, but that is not how the courts are ruling here in my experience. So let's just say it's best to check for the rules in your country and area, rather than give out advice which might put people in legal trouble.

 

[Tuomo L]

Sorry, but that is not how the courts are ruling here in my experience. So let's just say it's best to check for the rules in your country and area, rather than give out advice which might put people in legal trouble.

I mean, do you have a citation that proves me wrong about the trademark not being applied automatically before registration?

I'm not trying to be difficult, I legit am interested to know where your sources come from as it differs from every patent specialist and law firm that I've been in contact with about this.

 

[Kes]

"Every other patent specialist and law firm" makes it sound like you have consulted several (expensive, but hey, it's your choice). However, would I be correct in thinking that they are based in Finland as that is where you are? I assume so, because the American Bar Association and the UK Law Society do not like it when firms provide out of country advice unless they are specifically registered to offer legal opinion in the country of the enquirer. I would image that this attitude is fairly common in many national legal bodies. If they are based in Finland, then it is at least possible that they are not totally up to speed on the legal requirements of the 100+ countries represented by the Members of this forum. In which case, a non-legally qualified person's interpretation of a limited legal opinion is not automatically the most accurate and helpful thing to post.

 

[Roninator2]

IMHO getting a trademark for an RPG Maker game is ridiculous (unless your a bigger company making a lot of games). My wife took 10 years to get her trademark and in the two years after that it was expunged. For those that are not sure of the word, she lost ownership of the trademark to another person. Why, because they had money and needed to use a trademark to sell their products in my country. Since it was cheaper for them to take one than register one, ergo, 15,000 dollars down the drain.

A copyright however is fine when you clearly label anything that you 'produce' as your own work. The only problem I see with that is that for you to know that your work has been stolen you have to find the other game and discover what in that game belongs to you.
So while making a name for your game is copyright, just ripping resources and changing a few things then renaming the game... it just makes everything that much harder. Mind you not everyone is out to do this. From my experience, people will just make something similar, so as long as it's different in a marginal way then the copyright is intact. (insert my next title... lol)

 

[Kes]

It is worth clarifying that you do not get a trademark "for your game", as trademarks can only be simple, readily identifiable things such as words or a logo. Games are covered by copyright. You could get a trademark for the name of the game, though it would be difficult to do unless it is something not in common usage. So Pokemon is a registered trademark as it was 'invented', whereas none of the titles of my games would qualify, as they are too broad.

You could get a trademark for the name of a game studio. How that is done will vary from country to country.

 

[Tsukunex]

@Parallax Panda

You ask a very loaded question, and while I am not a lawyer by trade - I do know quite a bit about US Law.

So lets break down your questions:

1)How do you go about picking a name for your game that you won't get sued for; do you even care?
Well you should pick a name that captures your game holistically, one that is catchy and will "hook" audiences so to speak. As for you getting sued, sure you can run a search for names registered or otherwise protected by copyright - however, that is an inherent risk everyone takes cause no one entity contains a holistic database of such - especially when considering international titles. As for the latter question, I would assume most people don't care.

2) Are RM games such a small and insignificant niche market that chances of getting in legal trouble are close to zero?
I would say yes, chances of you getting into legal trouble are rather small. Lawsuits aren't cheap, and the chances of collecting on most developers using this software is close to zero. Usually, companies will elect to send a cease and desist letter requesting that you change the title or any elements associated with the use of the alleged infringing content, before resorting to legal ramifications. Also, if you're not collecting money on it, this further reduces your chances of getting into legal trouble.

3) Do you guys trademark or otherwise register your game titles in any way; what about studio names; and does that really protect your product internationally?
Sure you can attempt to trademark your game titles/studio names or copyright it, however that comes with its own host of headaches and cost. Is that something that you need, at this level? To be honest, I would advise against it, unless you are bringing in top dollar. Now, if someone essentially rips your game and starts calling it their own, that is a different story. But be prepared to shell out some $$$$ if you intend to track them down and slap them with a lawsuit. As for your chances of collecting, well there's a hope and a prayer. As for protecting your product internationally, that depends on the individual country's laws and whether there is a global agreement with said country. For example, countries without copyright protections can do whatever they want essentially.

4) International lawsuits?
Similar to my last answer, it depends. Also, the chances of such are unlikely as lawsuits are again, not cheap - and internationally cause even more headaches than it is worth. Unless your raking in big dough, I wouldn't worry about it.

 

[bgillisp]

Right. Anyone remember when King Studio tried to trademark Candy Crush Saga, so they could then go after all of those other Saga games and clones that were like their game? Obviously they wouldn't have had to do that if they had an automatic trademark. In the end, they withdrew the filing as there was a lot of public backlash at them for trying to trademark a name with a lot of common words in it, but I do remember one game maker making a game that made fun of them which he called redacted, and had the game randomly remove words as you played it, saying they couldn't use them anymore.

 

[Shaz]

The most difficult thing for me, with game name and studio name, was finding something that I could get the domain name for. People can register domain names and squat on them, with the intention of never using them, but making them unavailable for others - unless they want them so badly they're willing to give their firstborn child.

My suggestion is to find something that in no way at all resembles an existing company name - something that's available as a domain name, facebook page, etc, that you're happy with, and grab it.

However also search for alternatives - if you want a .com, see if the .org, .net, etc are already taken and go check them out. I once started making a (non-RM) game quite a few years ago - the title had something to do with butterflies. The domain name I wanted was available, but there was another domain with a VERY similar name, that was a porn site! Needless to say, I didn't settle on that one - didn't want people trying to find my game, mistyping the URL and ending up there!

Trademarks, I believe, can be within a single country (the cheaper option) or more global (an expensive option that probably only larger studios would take). I wouldn't be concerned with trademarking your game name, but I would avoid giving it a similar name to others that are already out there and are owned by larger studios. It IS okay to use the same name as something that's NOT a game - the creator of whatever that was (let's say a book) might come after you, but unless they can prove that your game is based on their book or that you're relying on the popularity of their book to boost sales of your game, they're probably going to lose out. Again, you wouldn't copy a title that's really really popular.