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kiki443

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Hi

Since my first topic has expired yet I have more questions related to this I will start a new one.

 

about old topic I want to say thanks for all who gave me answers and helped me with copyright and trademark related laws!

I appreciate any given help!

 

 

In old topic I heared many times answers like "ask a lawyer" I want to say that I am not asking for any legal advice just for explanations  and simple answers for question.

 

now the question:

 

correct me if I am wrong here:

in previous topic I ask about copyright; I asked how long copyright protects something:  the answer is 70 years after author's death, after that period the work became public usable or something like that, before that you need author's permission for taking his work to make your own.

I can't understand something it simply doesn't make sense to me if the author is dead no one inherited his work so who holds authorship over the work for next 70 years? and whom to ask permission if there is no living owner of the work? and most importantly who will sue me for making derivative work from that work?

(I am just asking I do not intend to do that)

 

about trademark:

 

correct me if I am wrong here too:

trademark protects logos, names etc. it prohibits you from using someone's else stuff and gives the owner a chance to sue you if you do.

condition is that word is not generic term (that word is not taken from the dictionary)

so therefore generic terms or dictionary words cannot be trademarked.

 

in previous topic when I asked are the orcs trademarked you said that it cannot be trademarked because it is a generic term.

 

I do a litle research on that and I found out that orcs as some other generic terms are indeed trademarked.

I was searching how to check if a word is trademarked and i found a trademark database.    https://www.google.hr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwj4qZ6o5bvQAhWGVhQKHTpNC2YQFgggMAE&url=http%3A%2F%2Ftess2.uspto.gov%2Fbin%2Fgate.exe%3Ff%3Dlogin%26p_lang%3Denglish%26p_d%3Dtrmk&usg=AFQjCNH7zNbJJLptjbXyI2bqh4UBfXarmQ&sig2=u9eHR_ay1QOA1hDmW_b89Q

 

I check if someone holds orcs as trademark and found out that over 50 people are indeed trademarked orcs.

I also check for another generic term and found that over 800 people holds trademark for that word.

 

And now I am confused:

How can multiple people hold trademark over the same word?

How can someone register a generic term as trademark?

Do I need permission from all those people if I want to trademark that word? (if that is even possible, according to my resoults it is) and can they sue me if I use it without permission?

 

here is one example:

https://en.wikipedia.org/wiki/Sins_of_a_Solar_Empire

title: expansions

subtitle: Rebellion

"The British video game developer Rebellion Developments has been opposing the use of "Rebellion" in the name of the game since 2012 due to trademark law."

 

How can they trademark a word "Rebellion" if it is a generic term?

 

 

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Copyright is essentially property and it passes on to someone else after an author's death much like any other property does. After 70 years the exclusivity period expires. Not all countries have such a long period in place. (You can blame Disney for America's situation here.)

 

Regarding trademarks - you don't get to decide what 'generic' means - that's a job for the various trademark offices or for lawyers. Also, a word you might consider generic is not generic in certain situations - for example, if I called a wall-building construction firm "Walls" that would probably be too generic, but the food company called "Walls" is fine. Also, trademarks are per-industry - different companies might hold the same trademark in different sectors.

 

It's not possible to tell you whether someone would sue you or not, or whether they would win or not. There's nothing to stop them threatening you even if they know they're likely to lose.

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So that means even if there is no someone to inherit the work that work will always have an owner but is that owner an agency for copyright or some sort like that, for example in my country there is an agency for copyright called ZAMP if you are distributing copyrighted Works for example playing someones music or song in public you need to pay a fee to that agency?

 

but one question can a generic term be trademarked in sector where that word is generic?

In an example you mention if you indeed have a wall-Building construction firm and call it wall would you be able to register "Walls" as trademark?

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I can't tell you what the system is in each country. Collections agencies are completely separate (and complicated) issue but they are generally only relevant for music.

 

Nor can I answer the question about trademarks. What you 'can' trademark is whatever the trademark office allows you to trade mark. Whether that is a valid trademark or not is for the courts to decide, and they will take into account how generic the term is and the context in which it's used.

 

Bear in mind that this is a game development forum and none of the above is relating directly to games, so if you have further questions on that, you'll need to find somewhere else to ask them.

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It's all a game with no rules except 'he who can afford lawyers wins the majority of the time'.

 

Here is an example of how stupid the whole thing is.

http://www.nydailynews.com/news/national/comic-book-creator-fights-term-superhero-article-1.1327860

 

and when it gets pushed into court, they drop the case in order not to set a precedent so they can continue to harass others...

https://www.theguardian.com/uk-news/2016/may/24/superhero-marvel-dc-comics-graham-jules-court

Edited by fleabay

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It's all a game with no rules except 'he who can afford lawyers wins the majority of the time'.

 

Here is an example of how stupid the whole thing is.

http://www.nydailynews.com/news/national/comic-book-creator-fights-term-superhero-article-1.1327860

 

and when it gets pushed into court, they drop the case in order not to set a precedent so they can continue to harass others...

https://www.theguardian.com/uk-news/2016/may/24/superhero-marvel-dc-comics-graham-jules-court

 

 

This is accurate.  It all boils down to who can afford the cleverest lawyers.  Even if you don't own the copywriter but can afford better lawyers than the other party you can still claim and even if you do own the copy write but cannot afford the better lawyers you can still loose.

 

Weather a term is generic or not depends on what your lawyers say.

 

As for there being nobody to "inherit" a work.  This is highly unlikely and is all down to your countries rules regarding somebody having died "intestate".  

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but one question can a generic term be trademarked in sector where that word is generic?
In an example you mention if you indeed have a wall-Building construction firm and call it wall would you be able to register "Walls" as trademark?

Trademarking a word works per genre/sector. For example I can trademark "Delta Games" (for videogames) without fear of getting sued by Delta Airlines. But I cannot register nor use the word Delta in anything that is related to airplanes and transport; even though the world "Delta" is a generic term.

 

There are a few exceptions such as words that are offensive or have special religious connotation cannot be tradermarked (like trademarking God, Jesus, Führer, or Nazi); but this is not very objective. For instance Nickelodeon and Fox had a little disagreement over the word Avatar (The Last Airbender movie & cartoon show vs James Cameron's movie) even though Avatar is a Sanskrit word that roughly means "representative of God on Earth", and has a strong connotation in Hinduism. That didn't seem to stop them from trademarking the word.

 

And yes, you can register Walls for a building construction firm. Could he sue anyone using the word Walls in construction? Yes. But because it's so obvious and abusive, he may get challenged in court. See Tim Langdell's Edge controversy. TL;DR the guy had trademarked the word "Edge" in relation to videogames decades ago, and he sued everyone who used the word edge in either the game's title or their descriptions (Soul Edge, The Edge Videogame Magazine, Mirror's Edge, etc). It wasn't until he sued a very small Indie game developer who he was supposed to defend (Langdell was part of the IGDA board) that the whole decades-old controversy came out to light and big AAA players finally decided to challenge him in court instead of giving him royalties; and he ended up losing the Edge trademark. Note however one big reason he lost the tradermark was that he hadn't been using the tradermark in a very long time (other than for suing other people), yet he was claiming he was getting damaged because others were using that word.

 

The thing is, just like others have said, the one with the bigger lawyer wins. And since searching to see if a word has been trademarked much easier, and it's so easy to change the name you were planning, everyone just follows that route; just like Nickelodeon changed Avatar to The Last Airbender instead of antagonizing Fox and unnecessarily delaying the release of both films.

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So basically whatever you do whatever you use there is always a person that will find something against someone who will sue you and most likely win because he will bribe the judges and lawyers against you and you wont be able to do anything unless you are a milionaire with 5 000 000 $ and you bribe your own lawyers.

 

what ashamed world we live in...

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But I cannot register nor use the word Delta in anything that is related to airplanes and transport; even though the world "Delta" is a generic term.

 

Well you can register it.  It is entirely up to Delta airlines and their lawyers to stop you.  If they don't notice you could slip through the radar for quite a while.  There are no automatic trademark police.

 

 

and he sued everyone who used the word edge in either the game's title

 

Not just games but movies, books, songs, magazines, websites and comic book characters all paid Landell for the licence to use the word Edge.  The current licence page on the website only shows a few examples but if you use the wayback machine and look at an older version there are tons of licensees listed.

 

 

will sue you and most likely win because he will bribe the judges and lawyers against you and you wont be able to do anything unless you are a milionaire with 5 000 000 $ and you bribe your own lawyers

 

Not entirely.  Laws are written using very complicated language and are designed to cover all kinds of different edge-cases.  Unfortunately because of the language used it needs experts (judges and lawyers to interpret it).  All the lawyers do is explain to the judge their interpretation of the law and the judge decides based on their arguments what he thinks is the most correct interpretation.  There is nothing underhanded such as bribery going on here.  

 

Is it unfair that somebody with more money can afford a better lawyer?  Well thats just life.  People with money can afford better cars, houses, yachts, food, education etc..  Rich people always have an advantage over less rich people thats just the way things work.

 

 

This doesn't mean that you need to go to court though.  Just make sure you do everything properly.  If you want to use a name don't just use it.  Visit an IP lawyer first and they will do the research  and be able to give you you a definitive answer Yes or No you can use this name.  This is usually a straight up one off fee.  I'm not sure how much but I'd guess around $150 - $500.  This won't 100% guarantee that nobody will sue you ever but, it does guarantee (in fact the lawyer will have insurance to cover this) that any of the millions of chancers who can send you letters trying to make a claim are covered.

 

 

 

Of course what you need to do is don't try to get legal advice from a games forum where nobody is actually a lawyer as a lot of the answers we give you could just be 100% bullshit.  There are legal forums and a few very good Reddits  around that do actually have lawyers as members who are willing to give some guideline advice but, the only way you can make sure you are covered is see an IP lawyer or become an IP lawyer.

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There are no automatic trademark police.

 

Some countries have a more rigorous trademark application process that would prevent you registering an obviously illegitimate trademark.

 

My understanding is that the USA - with a Congress that is nearly half lawyers - prefers to let the courts decide. Funny, that.

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My understanding is that the USA - with a Congress that is nearly half lawyers - prefers to let the courts decide. Funny, that.

 

Good point which also raises the issue of owning a trademark in different territories.  For example Apple lost the iPhone trademark in Brazil because another company already owned it and was also refused the trademark in Mexico because it sounded similar to another existing company called iFone.  They also lost out the trademark iPhone in China this year against a phone case manufacturer.
They had to stump up money to buy the licence for iPad as this trademark was already owned by Fujitsu.

They couldn't call their watch the iWatch as it was already trademarked by multiple different companies for different purposes in Europe and even though they called it AppleWatch they are still being sued by an Irish software developer because they are using the term iWatch in search keywords.  Apple have also tried to retro-actively trademark iWatch for specific terms but are now also being sued by Swatch who also own the trademark.

 

As you can see if even a company that has enough cash to buy a small country and enough lawyers to populate said country has difficulty then imagine how difficult it can be for an individual who hasn't lawyered up.

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There is nothing underhanded such as bribery going on here.

 

ok I didn't want to be rude, so my apologies for being so!

I didn't mean literally bribe just I wanted to say that you need lots of money to pay a lawyer (more money you have better you will be defended by your lawyer)

 

Is it unfair that somebody with more money can afford a better lawyer? Well thats just life. People with money can afford better cars, houses, yachts, food, education etc.. Rich people always have an advantage over less rich people that's just the way things work.

 

that is the fact of today's realty, unfortunately those with more money will be more powerful than others.

Nowadays messure of power is actually quantity of money they have, more money- more power-more possibilities.

 

This doesn't mean that you need to go to court though. Just make sure you do everything properly. If you want to use a name don't just use it. Visit an IP lawyer first and they will do the research and be able to give you you a definitive answer Yes or No you can use this name. This is usually a straight up one off fee. I'm not sure how much but I'd guess around $150 - $500. This won't 100% guarantee that nobody will sue you ever but, it does guarantee (in fact the lawyer will have insurance to cover this) that any of the millions of chancers who can send you letters trying to make a claim are covered.

 

thanks for that advice

 

They couldn't call their watch the iWatch as it was already trademarked by multiple different companies for different purposes in Europe and even though they called it AppleWatch they are still being sued by an Irish software developer because they are using the term iWatch in search keywords. Apple have also tried to retro-actively trademark iWatch for specific terms but are now also being sued by Swatch who also own the trademark.

 

that means that even if you use similar word to existing trademark the owner can sue you even for that.

But can he do that if you use it in different sector?

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can he do that

 

People can sue you at any time and for any reason.

 

The more useful questions are:

1. How do I minimise the chance of that happening?

2. How do I minimise the chance of them succeeding if it goes to court?

 

If you're not sure, steer clear.

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Lawyers are a necessary part of doing business, and by releasing programs to the public you are doing business.


Many people have picked up stereotypical views of lawyers that the profession is all about extracting money from people, that they are evil profiteers, or that lawyers are a blight to humanity.

While there are people who behave immorally in every field --- including computer programmers who write destructive programs that steal bank accounts or encrypt hard drives unless you pay -- most people are regular folks who are trying to do good generally. Laws are written to codify what society accepts as tolerable behavior, setting up rules of what we accept and what we refuse to accept. While the cost of a lawyer tends to be higher than people want to pay, around $150-$200 per hour in many US cities, the price is not unusually high for professional work.

IP law is based on the idea that if you build something of value, even when it is intangible it should generally be protected. When George Lucas and movie studios spend a fortune to create a brand around Star Wars, building up an entire galaxy with its own rules, the laws are that they should control both the tangible and intangible things they created for some period of time so they can profit from their efforts. The laws are currently built to prevent outsiders from taking over the names of the products and characters for their own, or from building derivative storylines that force the story writers into a different direction than they wanted to take it, or from directly taking the product as a whole and selling copies when they are unauthorized.

It is not about having the most expensive lawyers. If somebody created a thing of value, such as making a brand name popular through marketing and quality products, or making a game character popular through marketing and quality products, or making a thematic world popular through marketing and quality products, then when somebody comes in and attempts to use that name or character or thematic world is has nothing to do with the fact that someone has better lawyers, it has everything to do with the fact that somebody infringed on their works.

These groups are generally not trying to sue out of malice. They are generally not trying to sue to extract your money. They are trying to sue because someone came in and stomped on their existing valuable work. (There are a few people who do it out of malice or to extract your money, but like the virus-writing programmers or the con-man in the street, they are the exception rather than the rule.)


When you create a product you can talk with a lawyer who is skilled at making sure you don't accidentally use something that somebody else has built value around. That is one job of IP lawyers, and they're quite good at it. If they mess up and you get sued, they've got insurance to generally cover your costs.

They do have a cost, just like all professional services have a cost, but it is not very high considering the work they do. Much like getting a licensed plumber versus an unskilled person who can visit the hardware store and hope they can fix the pipes, or a licensed mechanic versus someone who tinkered around with motors a few times, or a licensed and bonded construction crew rather than the people standing around in front of the hardware store on a weekend morning, there is a cost involved for the work of skilled professionals but you know those professionals will do a professional job with guaranteed results. The cost of hiring a lawyer for a few hours of work is not very high compared to other costs of doing business, such as the cost of hiring any other worker like hiring a programmer or hiring an artist or hiring a janitor.

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1. How do I minimise the chance of that happening?

 

seems that I already have the answer to that question

after all I will have to talk with the lawyer to ensure that I didn't use anything that is someones property even if the word is not his property at all he can still sue me for using it.

 

2. How do I minimise the chance of them succeeding if it goes to court?

 

having a better lawyer is generally enough to win

because if you have a better lawyer even if not defending your word or IP you can still win and take that from actuall owner and if you are a owner you can lose your word if your oponent's lawyer is better than yours and vice versa

 

Lawyers are a necessary part of doing business, and by releasing programs to the public you are doing business. Many people have picked up stereotypical views of lawyers that the profession is all about extracting money from people, that they are evil profiteers, or that lawyers are a blight to humanity. While there are people who behave immorally in every field --- including computer programmers who write destructive programs that steal bank accounts or encrypt hard drives unless you pay -- most people are regular folks who are trying to do good generally. Laws are written to codify what society accepts as tolerable behavior, setting up rules of what we accept and what we refuse to accept. While the cost of a lawyer tends to be higher than people want to pay, around $150-$200 per hour in many US cities, the price is not unusually high for professional work. IP law is based on the idea that if you build something of value, even when it is intangible it should generally be protected. When George Lucas and movie studios spend a fortune to create a brand around Star Wars, building up an entire galaxy with its own rules, the laws are that they should control both the tangible and intangible things they created for some period of time so they can profit from their efforts. The laws are currently built to prevent outsiders from taking over the names of the products and characters for their own, or from building derivative storylines that force the story writers into a different direction than they wanted to take it, or from directly taking the product as a whole and selling copies when they are unauthorized. It is not about having the most expensive lawyers. If somebody created a thing of value, such as making a brand name popular through marketing and quality products, or making a game character popular through marketing and quality products, or making a thematic world popular through marketing and quality products, then when somebody comes in and attempts to use that name or character or thematic world is has nothing to do with the fact that someone has better lawyers, it has everything to do with the fact that somebody infringed on their works. These groups are generally not trying to sue out of malice. They are generally not trying to sue to extract your money. They are trying to sue because someone came in and stomped on their existing valuable work. (There are a few people who do it out of malice or to extract your money, but like the virus-writing programmers or the con-man in the street, they are the exception rather than the rule.) When you create a product you can talk with a lawyer who is skilled at making sure you don't accidentally use something that somebody else has built value around. That is one job of IP lawyers, and they're quite good at it. If they mess up and you get sued, they've got insurance to generally cover your costs. They do have a cost, just like all professional services have a cost, but it is not very high considering the work they do. Much like getting a licensed plumber versus an unskilled person who can visit the hardware store and hope they can fix the pipes, or a licensed mechanic versus someone who tinkered around with motors a few times, or a licensed and bonded construction crew rather than the people standing around in front of the hardware store on a weekend morning, there is a cost involved for the work of skilled professionals but you know those professionals will do a professional job with guaranteed results. The cost of hiring a lawyer for a few hours of work is not very high compared to other costs of doing business, such as the cost of hiring any other worker like hiring a programmer or hiring an artist or hiring a janitor.

 

very good explanation

thanks for that!

 

While there are people who behave immorally in every field --- including computer programmers who write destructive programs that steal bank accounts or encrypt hard drives unless you pay -- most people are regular folks who are trying to do good generally. Laws are written to codify what society accepts as tolerable behavior, setting up rules of what we accept and what we refuse to accept. While the cost of a lawyer tends to be higher than people want to pay, around $150-$200 per hour in many US cities, the price is not unusually high for professional work.

 

I understand that lawyer is difficult and professional job but paying 200$ per hour for few advises is a little too much imo

I would give 100$ most just for answers to few questions

 

IP law is based on the idea that if you build something of value, even when it is intangible it should generally be protected. When George Lucas and movie studios spend a fortune to create a brand around Star Wars, building up an entire galaxy with its own rules, the laws are that they should control both the tangible and intangible things they created for some period of time so they can profit from their efforts. The laws are currently built to prevent outsiders from taking over the names of the products and characters for their own, or from building derivative storylines that force the story writers into a different direction than they wanted to take it, or from directly taking the product as a whole and selling copies when they are unauthorized.

 

Now I understand that too, once I make my work all those laws that are now standing on my way will eventually

protect my work and I will profit from that too.

 

But is there a way to ensure that you are not infringing someones property besides talking with a lawyer and paying 200$ for that?

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But is there a way to ensure that you are not infringing someones property besides talking with a lawyer and paying 200$ for that?

 

Sure, you could spend a lot more by going to law school yourself and learning all this.  That's what you're paying the lawyer for as well as the actual service. 

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because if you have a better lawyer even if not defending your word or IP you can still win and take that from actuall owner and if you are a owner you can lose your word if your oponent's lawyer is better than yours and vice versa

 

incorrect.

 

to put it bluntly:

 

"best lawyer in the world ain't worth jack if you ain't got no case kid."

Edited by Norman Barrows

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is there a way to ensure that you are not infringing someones property besides talking with a lawyer and paying 200$ for that?

 

Yeah -   it's called "market research".   That's all you're paying a lawyer to do.

 

Its really pretty simple.

 

Don't use copyrighted material in your games.  Vet everything you don't create yourself to make sure its not somebody else's.

 

Come up with new and unique trade names for your products - ones that don't have "prior use" in any similar industry that could cause confusion.  Come up with a name, then do a google search, if it doesn't exist on google, you're probably safe.

 

In the USA, until you get to AA or AAA size, that's sufficient for a start.  You can register trademarks as additional evidence of "prior use" if you get sued. and a copyright is created as soon as you save a text file.   its on your hard drive - you're the author - and it has a date. helps if you put a copyright statement in the doc itself too.

 

use "Copyright <some year> <your name or your trade name> All rights reserved" on everything.

 

use "TM" or "Reg TM" (if registered trademark) for your trade names, logos, etc.

 

and then get back to coding and stop worrying about it.    we should all hope to be so successful as to actually have to really worry about such things.

 

of course, the laws vary by country.  you mileage may vary.

Edited by Norman Barrows

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For trade marks there are four categories:

 

Generic - name of a particular genus or class

Descriptive - identifies a characteristic or quality

Suggestive - implies a characteristic

Arbitrary - bears no relationship to the product

 

The top of the list is considered the "weakest" trademark where the bottom is the strongest.  You can trade mark any of the bottom three. Generic means boils down to the fact that you are using a word that has to be used to describe the product. If I made pencils and my brand name was "pencils"  I would not be able to trademark it because the word is part of what the product is.  But if i called them "Smooth Pencils" that could be descriptive, so I might be able to get a trademark on the phrase (not the individual words), "writer's sword" would probably be suggestive, and something like "Soccer Balls"  would be arbitrary. Even though soccer ball is a generic word it has nothing to do with pencils so I would have a trademark on PENCILS CALLED SOCCER BALLS, not the phrase soccer ball.    With the constructions company called "Wall" that is a suggestive name so it would be trademarkable.

 

 It is impossible to completely eliminate all risk of lawsuits.  The point of worrying about laws is to avoid a large or even medium chance of a lawsuit. Ususally knowing what the laws are and common sense will be enough to avoid troubles.

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Thank you for te explanations of different tredemark categories.

 

I have one more question.

 

I have come to idea that I bypass all trademarked terms by simply changing the word (deforming it).

so the word is registered in the same sektor I want to use it.

but if I change it for example add a letter or remove one or add two letters and change one or in my case the word is to be used as a "racename" in my movie so I could add an apostrophe (') in the middle of the word, or change it in simmilar way so that the word looks different but sounds almost the same and it has a sense (so it's not the senseless combination of letters).

 

I searched USPTO for original word and it is registered in multiple sektors than I change it and The new word is not registered anywhere.

I also search the google for a new word and it didn't find anything.

 

can I avoid being sued for using the original trademarked word?

Does this way of using registered trademarks counts as a violation of Intellectuall property?

if no than It should be safe or could I still get legal problems?

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Thanks for the answer!

 

another question not related to any question I asked It is related to Intellectual property though.

 

I saw there are many FAQ documents for games (walkthroughs, etc.)

So I want to create my own walkthrough to help other players.

 

It would be a fan-made non-commercial walkthrough.

 

my question is do I need the developer's permission for writing and submitting such document?

And if I submit it without permission can I get C&D to remove the document?

 

the walkthrough will not be submitted on my website I want to submit it on other website like https://www. gamefaqs.com/.

 

 

  1.  

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It's hard to say, but it seems unlikely that permission is needed.

 

But - and we've said this several times in this thread - it is ALWAYS possible for someone to send you a C&D. No matter what you do. All that differs, from case to case, is how likely they are to do that, and whether they're likely to succeed if it ends up in court. You just need to decide how much risk you can tolerate.

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