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sws26

Trademark question.

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sws26    122
I have been developing an open source game Herzog3D since 2005. Just recently someone registered herzogwars.org and a trademark to go with it. Could this person at some point in the future sue me for infringing on their trademark even though I used something similar before he registered it? From what I can gather you give up your trademark if you don't enforce it even if you are still using it. But does that mean someone else can come back and sue you by registering it after the required non-enforcement time period.

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Trapper Zoid    1370
Note I'm not a lawyer, and for a definitive answer you'll have to consult with one.

Anyone can sue anyone else over anything even if they don't have a case, so even if you're in the right that doesn't mean you won't get sued. Nevertheless, my understanding of trademark law is that if you can prove that you were using your trademark before the filing date of the registered trademark then you should okay. But I really would check with a lawyer on that one.

I'm a bit surprised that you could trademark something based on Herzog anyway, as I'd have thought Technosoft would still own the trademark to Herzog Zwei; has it expired?

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sws26    122
Not sure on that one. Technosoft went under and got bought out by a random Pachinko maker called TwentyOne-company.
They probably didn't bother to enforce any of the trademarks and so someone decided to register it to capitalize on the games high regard.

[Edited by - sws26 on May 3, 2007 9:28:49 PM]

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ellis1138    234
Since someone else has a Trademark (assuming it's actually registered), and you don't, then they have the rights in this case. I'm not sure how long ago they registered it, but there's a span of 5-6 months in which you're supposed to oppose a Trademark under application. It appears that, if Herzogwars has an actual, registered trademark, then nobody opposed it during application.

But yes, consult a Trademark lawyer.

I went to that site, but all that's there is a little graphic. Don't confuse domain registration with Trademark Registration.

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Obscure    175
Quote:
Original post by ellis1138
I went to that site, but all that's there is a little graphic. Don't confuse domain registration with Trademark Registration.
I checked the trademark database and a new trademark has been registered.

There is a second intellectual property issue to consider apart from trademark, that of copyright. Trademarks expire after a set number of years unless the owner renews their application. Copyright however remains in force for the life time of the author +70 years. I don't know if the original copyright was owned by a company or an individual - back when the original was made many companies didn't recognise the value of IP and so let individuals keep it. Whatever the case someone somewhere owns the copyright on the original game and creating a new game based on that (regardless of the status of the trademark) could be viewed as copyright infringement on the basis that the new game is a derivative work. This means that both the OP and the person who registered the new trademark (and appears to be doing a new game) could face a legal action if the original copyright owner appears.

Of course the person who recently registered the trademark might actually be the original creator - or may have bought the copyright from them.

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sws26    122
I think I am much more likely to get a C&D on trademark grounds from the person who registered the new trademark than the original owner on copyright grounds. Back to my original question, ellis1138 seams be of the opinion that a valid registered trademark may be enforced on something which predates the trademarks registration whereas Trapper Zoid believes the opposite.

Looks like I will have to talk to a lawyer.

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Tom Sloper    16062
Quote:
Original post by sws26
Looks like I will have to talk to a lawyer.

What a good idea. :D
Wonder why none of us thought of that.
[Retroactive sarcasm alert]
[End retroactive sarcasm alert]

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MessyCow    122
Hi I registered just to throw my 2 cents in--I loved Herzog Zwei back in the day.

I did the free trademark search to see what you are talking about first hand. From what I see, Technosoft registered "Herzog" but that expired a few years ago, declared abandoned. Funny they never registered the full Herzog Zwei. The new one is for Herzog Wars, which probably has something to do with the original but who knows. (looks like it from the bits of screenshots you can see)

About the copyright, that's much fuzzier. When it comes to things like games, you can only copyright the art and the literal code. The only times copyright cases against games have been successful is where someone literally ripped off another game. If they change the art, and make improvements, then that would go beyond the original and be free from copyright issues.

There was a literal copy of Street Fighter back in the day, but it was changed just enough that the copiers won in court. Even look at things like Zuma, which is directly stolen from an earlier game--it also had a spinning frog in the middle that shoots balls the same way. You can't copyright gameplay, and copyright on visuals there is a lot of leeway based on precedent.

Of course maybe they bought the rights to it, that's another possibility. But the real key is the trademark and they didn't have to buy that from anyone since it expired. The upside of that is that sws26 will probably be in the clear, since the new trademark is exactly "Herzog Wars", and Herzog appears to be fair game.

Regardless of all this, here's hoping to a Herzog XXXX type game showing up after all these years. :)

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