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Unregistered trademark questions


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#1 Rich76   Members   -  Reputation: 178

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Posted 07 August 2013 - 02:54 PM

I purchased a domain that I want to use as my trademark ™ for my game, however, I noticed someone is already using the name, unfortunately. I have a few questions:

 

1. Does an unregistered trademark give you complete authority over the name of your trademark. For example, can I use the same name as long as my logo is completely different?

 

2. If someone has a trademark on "Company Name," am I allowed to put a trademark on "CompanyName?"

 

3. How does an unregistered trademark expire? I've seen a ton of website with an unregistered trade with "Coming soon" on the page, and they sit there for 10 years. What's to stop someone from creating a million unregistered trademarks so that others can't have them?

 

 

If you can share the answers to any of these questions, I would really appreciate it. Thank you.



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#2 Rich76   Members   -  Reputation: 178

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Posted 07 August 2013 - 03:14 PM

Found this post helpful:

 

http://www.gamedev.net/topic/641629-name-your-gamewhat-is-copyrighted-and-what-not/?hl=%2Bunregistered+%2Btrademark



#3 Stormynature   Crossbones+   -  Reputation: 3338

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Posted 07 August 2013 - 09:01 PM

As always the first person you should consult before considering any legal action is a lawyer who specialises in Trademarks, if your competitor does have their trademark registered then I would definitely suggest consulting a lawyer sooner than later.

 

Trademark disputes general arise from one of two ways:

 

1) You consider that a competitor is using a trademark that too similar or identical to yours.

2) Your competitor considers that you are using a trademark that is too similar or identical to theirs.

 

Depending on your individual country's laws there may also be actionable steps taken such in Australia with Misleading or deceptive conduct or Passing off

 

Not having your trademark registered means that any legal action you take is going to be more costly and time consuming as you won't have access to the statutory protections under your government's standardised Trademark acts/laws that encompass registered trademarks and you would most likely need to demonstrate that your company has a specific reputation that is being damaged by the infringing trademark.

 

Registering a business, company or domain name gives you no proprietary rights as in it does not automatically give you the right to use that name as a trademark.

 

As to your questions:

 

1) Does an unregistered trademark give you complete authority over the name of your trademark.     No it does not

 

2) If someone has a trademark on "Company Name," am I allowed to put a trademark on "CompanyName?"  Yes and no. If your business is distinctly different (as in you make bricks and they create games) then probably yes however trademark laws usually have enough flexibility within them that an argument might be successfully made that you are infringing regardless.

 

3) How does an unregistered trademark expire? Normally Trademarks expire when no longer being used commercially but this is becoming less and less the case these days - it might almost be safer to assume that trademarks don't expire rather than open a can of worms (but best to see a lawyer on that).

 

I've seen a ton of website with an unregistered trade with "Coming soon" on the page, and they sit there for 10 years. Oftentimes establishing who was first with a trademark can be point on which a trademark's ownership is allocated, there are usually laws within the trademark acts where you can also "reserve" a trademark which may not be utilised straight away but does afford some of the protections under trademark law.

 

What's to stop someone from creating a million unregistered trademarks so that others can't have them? Probably nothing at all, except in practical terms the lack of use of these trademarks would most likely be successfully challenged with very little difficulty as none of these trademarks are likely to be associated with any commerce beyond the trademark itself and have no "reputation" associated with it.

 

 

Hope this helps and seeing an appropriate trained lawyer before taking action is always the best advice.



#4 Norman Barrows   Crossbones+   -  Reputation: 2102

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Posted 07 August 2013 - 09:57 PM


1. Does an unregistered trademark give you complete authority over the name of your trademark. For example, can I use the same name as long as my logo is completely different?

 

they have prior use. if the products are too similar you'd lose in court. generally, the courts will only find in your favor if the products/services are so dissimilar that no one could possibly confuse them (a Brillo®  pad and an a-bomb both named "blaster" for example).   note my proper use of the ® <g>.

 


2. If someone has a trademark on "Company Name," am I allowed to put a trademark on "CompanyName?"

 

for a registered trademark, i believe the answer is no. IE if they have already registered "company name" as a trademark, your application will be rejected as a "name already taken" or "conflicts with / could be confused with existing registered trademark" type of thing. again, the dissimilar services/products exception may change that.

 


3. How does an unregistered trademark expire? I've seen a ton of website with an unregistered trade with "Coming soon" on the page, and they sit there for 10 years. What's to stop someone from creating a million unregistered trademarks so that others can't have them?

 

an unregistered trademark is only a "claim" to name, not sole rights for a given period of time.

 

when it comes to trademarks, its mostly about prior use in a given market. registration is just a way to help establish a start date for prior use.

 

generally speaking, if someone has a "TM" on something, pick another name. you can never tell whether they will be one of those types that goes litigation crazy.  and no one needs that BS.

 

or if you can prove prior use, grab you wallet, call the lawyers, and nuke 'em 'til they glow!


Norm Barrows

Rockland Software Productions

"Building PC games since 1988"

 

rocklandsoftware.net

 


#5 Rich76   Members   -  Reputation: 178

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Posted 07 August 2013 - 10:33 PM

Thanks guys. This site has always provided useful information. +1



#6 Servant of the Lord   Crossbones+   -  Reputation: 19499

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Posted 08 August 2013 - 12:08 AM

To tack on some more non-lawyer info onto Stormynature's post:

 

1) Does an unregistered trademark give you complete authority over the name of your trademark.     No it does not
 
2) If someone has a trademark on "Company Name," am I allowed to put a trademark on "CompanyName?"  Yes and no. If your business is distinctly different (as in you make bricks and they create games) then probably yes however trademark laws usually have enough flexibility within them that an argument might be successfully made that you are infringing regardless.
 
3) How does an unregistered trademark expire? Normally Trademarks expire when no longer being used commercially but this is becoming less and less the case these days - it might almost be safer to assume that trademarks don't expire rather than open a can of worms (but best to see a lawyer on that).
 
I've seen a ton of website with an unregistered trade with "Coming soon" on the page, and they sit there for 10 years. Oftentimes establishing who was first with a trademark can be point on which a trademark's ownership is allocated, there are usually laws within the trademark acts where you can also "reserve" a trademark which may not be utilised straight away but does afford some of the protections under trademark law.

 
The key thing to understand with trademarks is that trademarks and patents and copyrights serve different purposes.

 

The goal of patents/copyrights is to encourage inventions/content-creation, by letting inventors/creators know that they can profit from their inventions/creations without their work getting stolen by other companies and produced for cheaper. It encourages sharing of discoveries, sharing of knowledge, and sharing of culture, by giving inventors and creators a free period of time to profit before their work becomes open-hunting to every company. By then ending the copyright later, the government allows competition in a freemarket to drive down prices, further benefitting consumers.

(Note: I'm not happy with what I feel is overly long lengths of copyrights, but copyright length is not important to the conversation).

 

Patents and copyrights are intended to indirectly benefit the public by directly benefiting companies. 

 

Trademarks on the other hand, are meant to directly benefit the public, and they just happen to also benefit companies.

 

The purpose of trademarks are to prevent customers from thinking they are buying one product, when they are really buying another inferior/cheaper product. It's to prevent the customer from getting ripped off - so there's zero reason to put a timelimit on them.

Companies benefitting from them by allowing them to invest alot of money in marketing and building a brand is an effect but not the goal of trademarks.

 

Mario as a Nintendo trademark will never expire, but Mario as a Nintendo copyright will eventually expire.

This means, Mario will eventually (in a bajillion years*) be available for others to create their own Mario games and call them "My Original Mario Name" (after it expires), but that calling your game "Mario Galaxy 5", misleading consumers (intentionally or not) into thinking your product is an official part of the Mario Galaxy series will still be trademark infringement, for the protection of the consumers buying products.

 

Trademarks = For consumers directly, so they last forever until they are no longer in use.

Copyrights/Patents = For creators directly, for consumers indirectly (by motivating creation), but will expire so it benefits consumers directly (by competition lowering prices).

 

Part of the original purpose of copyrights expiring is to keep monopolies on important parts of culture from existing and to allow culture to spread and encourage the translation of works into new languages, and permit new artists to expand upon older works of art.

 

*Mario expires in 2077, in the United States, if copyright isn't extended yet again - but copyright has been continually extended in the past 50 years or so, so nothing prior to 1923 has fallen out of copyright. Other countries have longer or shorter lengths, but usually recognize the longest international length anyway.

 

What's to stop someone from creating a million unregistered trademarks so that others can't have them? Probably nothing at all, except in practical terms the lack of use of these trademarks would most likely be successfully challenged with very little difficulty as none of these trademarks are likely to be associated with any commerce beyond the trademark itself and have no "reputation" associated with it.

 

In addition, unlike patents, the more 'everyday use' your name is, the harder it is to defend. So unlike with domain names, everyday used words aren't good choices. Combinations of words are good, and new words or creative mispellings of existing words are easier to enforce. The numerical amount known as a Googol was what the company Google was originally trying to name itself, but they accidentally misspelled it on their trademark registration form (they were college students, and forgot to look up the correct spelling before they went to register it) - their accidental misspelling actually increased the strength of their trademark.

Also, if you trademark a normal word, such as 'Delta', and decide to create an airline, your trademark only applies to your industry. Others can also use the word (because it's not an original word) for a different industry... such as hotels. Though the Delta Airlines and Delta Hotels is slightly more unusual, because they are both in related industries (both in broader travel industry), nothing is stopping me from, say, creating a software company or product using that common word.

If you're abusing your trademarks just to sue others, and your trademarks are overly broad, they can be revoked. As, thankfully, Tim Landel found out recently found out. (He was trolling companies for lawsuit settlements).

Also note that trademarks aren't just words: You trademark your company name, logo, and even noises that are used to promote identify your brand (MGM lion roar, Mac startup noise, XBox startup noise, etc...). Noises and images that aren't used to identify your brand are copyrighted, not trademarked.

 

Hopefully that extra background info gives you a better perspective on the purposes and uses of trademarks.


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#7 Stormynature   Crossbones+   -  Reputation: 3338

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Posted 08 August 2013 - 06:52 AM


If you're abusing your trademarks just to sue others, and your trademarks are overly broad, they can be revoked. As, thankfully, Tim Landel found out recently found out. (He was trolling companies for lawsuit settlements).

 

Nice find. Sad part is, as you explore through background of it all, you swiftly realise that this gentleman has some major personal issues with reality.






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