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Rich76

Regarding US trademark

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I have a trademark (not registered) for my game, and another company came along recently and began using my trademark as their game. They are on all the social media websites, and when I went to facebook to have them remove the page, Facebook responded back with: "It isn't clear from the information you provided that such trademark rights as you may have would allow you to prevent the reported use." I'm not allowed to prevent someone from using my trademark (video game) from being used as another video game on Facebook?

 

(When I can afford, I will get a lawyer and register my trademark.)

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Most important question: are you already selling/distributing your game? If so, get a screen shot showing when your game went on the market and any documentation you have as supporting evidence of your first use in the marketplace. Also provide the same information for your competitor, showing that they entered the market after you. 

 

If you aren't actively selling/distributing your game, and your competitor is, you will have more of an uphill battle. Priority goes to first in use in the marketplace-- this is the first time you identify your product using the mark in the marketplace. 

 

  If they've registered or applied for the mark, you will need to pay attention to their filing timeline through the TESS system on uspto.gov so you can file your contestation/cancellation of the application/registration within the required time frame. 

 

 

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Most important question: are you already selling/distributing your game? If so, get a screen shot showing when your game went on the market and any documentation you have as supporting evidence of your first use in the marketplace. Also provide the same information for your competitor, showing that they entered the market after you. 

Selling your game would be "inuse" trademarking, therefore a screenshot should be enough. 

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Selling your game would be "inuse" trademarking, therefore a screenshot should be enough.


Probably not, no.

Most companies -- at least, those with any amount of resources -- will pay the small trademark filing fee and get the registered trademark.

To challenge that mark requires far more than a screenshot. It requires demonstrating that the mark was used in commerce before that data, and depending on how much advertising the other company has been doing, probably would require that the earlier product demonstrate that the mark actually has picked up secondary value associated with the company or the product.

 

It wouldn't be enough to say "Here is a screenshot of Rich's Game, with the game title Rich's Game".  You'd have to show the title "Rich's Game" was released before the earlier date, and if the other company had the forethought to register the intent to use the mark, you would have to show that people actually know about the title "Rich's Game", and at least some people -- customers or active players I imagine -- already knew about the product by that name before the other company sent in their registration.

 

 

 

If it wasn't worth the $225 filing fee, it probably isn't worth the much higher cost of protecting the name through legal channels.  It is probably easier to pick a different name.

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Most important question: are you already selling/distributing your game? If so, get a screen shot showing when your game went on the market and any documentation you have as supporting evidence of your first use in the marketplace. Also provide the same information for your competitor, showing that they entered the market after you.

The reason you have trademarks to being with is it is a legality to a name. It is not my job to go on every wannabe game developers facebook and see if they have a mod with the name I want to trademark. Showing prior use is probably one of the hardest things you would have to challenge in trademark law. That is why you trademark to begin with. Even if this were a legit case, it would cost so much to fight. Bottom line: trademark if you are serious.

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It is not my job to go on every wannabe game developers facebook and see if they have a mod with the name I want to trademark.

 

correct - that would be a job for your patent / trademark attorney.   that's pretty much what they do.

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correct - that would be a job for your patent / trademark attorney.   that's pretty much what they do.

 

No, they don't do that. If you think that attorneys try to go meet everyone in the world and every facebook page, every hotdog stand....lol no. They go to the trademarks listed, see if someone owns the name and that's it. Period. I could even have a hotdog stand in Florida called GameDev Hotdogs, and someone in any state could create a frozen hotdog product to sell across the US called GameDev Hotdogs......and it will happen. If you don't trademark it, then you do not own it.  That's why every state in the US can have the exact same DBA (doing business as) name. There could be GameDev Hotdogs FL, GA, CA etc.... but whoever wants to trademark it owns the name. Period. That is why a DBA is not the same as a trademark. And this guy doesn't even have a DBA.... seriously no attorney is going to ask 300 million people in america either by going to facebook or seeing if they created a magazine name that they pass out on some random street corner. It is your job to go to the US and say "I want this name".


https://www.sba.gov/blogs/difference-between-trade-name-and-trademark-and-why-you-cant-overlook-either

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