When it comes to intellectual property in games, your brand is one of your most valuable assets. If you’re publishing your own video game or board game, one of the most important steps you can take is to protect the game’s name.
In this post, I’ll show you how you can trademark your game, step by step. We do this, in order to stop infringement and make sure you’re not infringing on someone else’s trademark.
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Game Trademarks explained – what are they?
Let’s start with the basics – what is a trademark?
Trademarks are basically any word, slogan, or image that identifies the source of goods or services. A brand, essentially.
In the context of game trademark, it can be anything from:
- the game’s name,
- the game’s logo,
- the game developer or publisher’s name or logo, or
- the game’s slogan or tagline.
Here’s some examples you might recognize as famous video game trademarks:
These are game names (Activision’s “Call of Duty” games), logos (Microsoft’s Xbox “X” logo), and slogans (Nintendo’s “Now You’re Playing With Power”).
All of them are powerful game trademarks.
The same applies to board games, as well.
For example, HASBRO and MONOPOLY are very strong tabletop game brands (which are used in both board games AND video games). Even on a smaller scale than mass market board games, brands like Scythe, Unmatched, and Dominion are strong and distinctive – when you see those names, you know what you’re getting – a quality game!
Here’s another one, from Sony:
How to Trademark a Game – the name, the company, or the logo
While filing a trademark application is, on the surface, kind of simple, there are actually a lot of steps involved in order to do it right.
If you jump into it without doing things the right way and following all the steps, you may end up making some serious mistakes that can lead to losing the registration. Then, you’ve wasted money, time, and potentially lost the right to use the trademark you wanted.
So I don’t recommend skipping steps here and rushing things.
Honestly, I recommend that you get professional help – a video game attorney like myself who has filed hundreds of these game trademark applications can help you through the process and get it done with less stress, less wasted time, and less mistakes.
Step 1 – Brainstorming a Strong Trademark
The first step to trademarking a game is coming up with the trademark itself. However, I find it’s best not to stop with your first “perfect” idea – often this will end up blocked by an existing trademark registration.
Instead, I usually suggest that clients have at least 5 ideas. List them in order of preference and start the next step.
Step 2 – The Trademark Clearance Search
Once you’ve got your list of potential trademarks, you need to run a video game trademark search to “clear” your mark against existing trademarks. This is as much an art as it is a science – many potential conflicts that my clients dismiss as no problem will actually stop a registration.
You need to search:
- registered trademarks (on the TESS search engine on uspto.gov for US, and on the WIPO global brand database for international), and
- unregistered trademarks which may have common law rights
These common law trademark rights begin once someone has started using the name in commerce in connection with their goods and services, at least in the US. So they may be able to sue you for infringement, even without a registration.
For this reason, the search needs to be broader than you might think.
In my practice, I use a combination of a clearance search service for registered US and international marks, and manual searching of different databases (sites like Steam and itch.io for video games, and Board Game Geek for board games). This provides as comprehensive of a search as you’re going to get.
Here’s an example of the search results from the service I use, TMTKO – Looks like trying to register a trademark for CALL OF DUTY would be a bad idea!
Step 3 – Filing the Application
Once you’ve completed the clearance search and finalized your choice, the next step is to file your trademark application with the USPTO.
It’s a bit complicated, only because there is a lot of jargon in there. Many people who file these themselves get tripped up on things like choosing the proper basis for their application, what date to put as the date of first use, and submitting the proper specimen showing proof of use.
If you manage to make it through the application correctly, then it’s time to move on to the next (and longest) step – the wait.
Step 4 – The Long Wait
It used to be that the USPTO would review a trademark application within 2-3 months. However, since 2020 this wait time has stretched to around 8 months.
So while your rights will always stretch back to the date of first use or the date you filed (for intent to use applications), there is a long wait until you know whether it will pass their examination.
After that initial examination, there’s a 30 day publication period where anyone who wants to oppose the registration can do so. If your trademark makes it through that, it’ll be a couple more months before it is registered or, in the case of intent to use applications, given a Notice of Approval pending evidence of use in commerce.
Step 5 – Registration
Once your trademark is registered, you are expected to police and enforce the mark against infringement. Without this, you might lose your rights.
Also, there are ongoing maintenance filings after the 5th year, 10th year, and every 10 years after that. You’ll have to provide evidence that you’re still using the trademark, but the good news is that your rights can go on forever as long as you’re still doing so.
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Wrapping it up – I’m here to help get your game trademark!
So that’s the process for how to trademark a game! It can be a bit daunting, but it is doable.
However, I recommend that you use a lawyer (maybe your favorite video game attorney) to do the clearance and filing on your behalf. This can help to avoid tons of potential issues that can pop up through the process.
If you want some help with your trademark, just jump over to my contact page to set up a consultation to discuss your video game intellectual property and other issues.