Hi everyone,

after reading Jason Rohrer's story and his post about free distribution (http://hcsoftware.sourceforge.net/jason-rohrer/freeDistribution.html), I'm quite torned about what to do with my game regarding these two things:

-game name trademark registration: should I really do that? I mean, Jason didn't did that for One Hour, One life (at least this is what I found searching on the uspto), , and surely I can't assume that my game will have more success than ihis game. But how can one then protect against abuses? Or worse, how can I protect against someone that trademarks my name afterwards ands forces me to change name?

-distribution: should I really distribute the game via steam? At the end of the day what Jason says is totally true: the most successfull games didn't went on steam, especially those that are multiplayer (Like mine is)... so if a game is really good, people will find a way to get it. Another good point against steam distribution is that games on steam tends to have a boost during the first days after launch, to quickly fall down afterwards... while instead avoiding steam allows you to "slowly but steady" build the community, probably ensuring more long-term incomes.

What do you think?

Sorry for my english.

Leonardo

Any suggestion or

What abuses are you trying to protect against? How much money do you have to protect your game? How big is the game?

Enforcing copyrights and trademarks on your game are expensive.  While issuing a copyright dispute to a website usually means a quick online form, anything more than that requires lawyers, legal demands, lawsuits, and judges.

The cost of enforcing them through legal actions is worth it for large games. Protections cost a few thousand dollars, and the first few rounds of legal demands also cost a few thousand dollars, or ten thousands. When the budget is measured in many million dollars, ten or twenty thousand isn't overly large to protect the investment.

Unfortunately for all content creators, enforcing against abuses from consumers and distributers is nearly impossible when it happens on a small scale, and isn't cost effective when it happens on a moderate scale. You can't sue every individual who pirates a game individually; identification is difficult, cost is enormous, and the publicity ins't the good kind.  On the moderate scale you can find people distributing your works, you can submit copyright claims against them, but if their ISP does anything they'll pop up five minutes later on another server. Large scale violations tend to be in places where the law is impossible to apply without tremendous cost.

If the feared abuses are another business taking your trademarks, that is rare. Trademark protections require brand recognition. Companies check for existing brands before they create their own trademarks. If your stuff is small it won't have brand recognition so trademarks will have nearly no power, and therefore are nearly impossible to enforce. The Internet makes it easier than ever for companies to check words and phrases. If your product gains brand recognition then companies will see it and will stay away from the names, just as you should check for names before using them. As a result, trademark infringement in our world today is rare and typically accidental. Out in the real world, intentional trademark infringement happens mostly by clone creators who tend to be outside of nations that respect those laws.  Enforcing international trademark disputes in countries known for trademark infringement (e.g. China) is enormously expensive and not worth it in nearly every situation.

7 hours ago, frob said:

What abuses are you trying to protect against? How much money do you have to protect your game? How big is the game?

 

Enforcing copyrights and trademarks on your game are expensive.  While issuing a copyright dispute to a website usually means a quick online form, anything more than that requires lawyers, legal demands, lawsuits, and judges.

The cost of enforcing them through legal actions is worth it for large games. Protections cost a few thousand dollars, and the first few rounds of legal demands also cost a few thousand dollars, or ten thousands. When the budget is measured in many million dollars, ten or twenty thousand isn't overly large to protect the investment.

Unfortunately for all content creators, enforcing against abuses from consumers and distributers is nearly impossible when it happens on a small scale, and isn't cost effective when it happens on a moderate scale. You can't sue every individual who pirates a game individually; identification is difficult, cost is enormous, and the publicity ins't the good kind.  On the moderate scale you can find people distributing your works, you can submit copyright claims against them, but if their ISP does anything they'll pop up five minutes later on another server. Large scale violations tend to be in places where the law is impossible to apply without tremendous cost.

If the feared abuses are another business taking your trademarks, that is rare. Trademark protections require brand recognition. Companies check for existing brands before they create their own trademarks. If your stuff is small it won't have brand recognition so trademarks will have nearly no power, and therefore are nearly impossible to enforce. The Internet makes it easier than ever for companies to check words and phrases. If your product gains brand recognition then companies will see it and will stay away from the names, just as you should check for names before using them. As a result, trademark infringement in our world today is rare and typically accidental. Out in the real world, intentional trademark infringement happens mostly by clone creators who tend to be outside of nations that respect those laws.  Enforcing international trademark disputes in countries known for trademark infringement (e.g. China) is enormously expensive and not worth it in nearly every situation.

I don't want to protect against illegal copies, that is practically impossible as you said.

The only think I'm worried is that my game has a name that is a very Common word (on the same level of "destiny" to make an example), and so if a big company decides to pick that same name and trademark it, well it would be pretty bad.

But it seems to me that you're suggesting that if I'm 100% sure that no game has the name I picked, and if I own a reasonable .com domain for the game (like I do), as soon as I start marketing and selling my game I should be fine even without trademark, right? I mean you're saying that companies will recognize the fact that that name is "mine", and will avoid noming their game the same?

This project means Everything to me, and the scale of the project is big enough that if it has success, I expect it to sell a pretty decent number of copies.

But being the name a pretty Common and "evocative" word, I just want to avoid that someone else come along and "steal" my name.

What can I do other than acquire the domain and actually start marketing and letting the world know about my game?

I think you need to read up a bit about trademarks, and probably talk to a lawyer in your region of the world.

If your name is "a very common word" as you said, then it falls into the group of trademarks with almost no power.  A trademark needs to be distinctive to gain protections.

In general yes, if you are actively using the name companies won't name things the same.  But the fact that you're using a common word means YOU might be accused of those violations, particularly if your use overlaps theirs. There are many examples, but one that played out a few years ago was the Edge lawsuits. He did taketowns of smaller businesses claiming rights to the word against games like "Soul's Edge", the phrase "Cutting Edge',  and plain old "Edge", and gained confidence to the point of challenging EA's name 'Mirror's Edge'.  Four years and many million dollars later in a war through litigation, he lost all his trademarks because they had no secondary meaning. Sometimes it works out the other way. Microsoft had difficulty keeping trademarks on several names like Windows and Word back when they were much smaller, until they ultimately convinced judges they had enough secondary meaning in the public mind.

And you wrote this:

39 minutes ago, erpeo93 said:

This project means Everything to me, and the scale of the project is big enough that if it has success, I expect it to sell a pretty decent number of copies.

All the more reason you need to talk with a lawyer who knows the business law regarding games.  

31 minutes ago, frob said:

I think you need to read up a bit about trademarks, and probably talk to a lawyer in your region of the world.

If your name is "a very common word" as you said, then it falls into the group of trademarks with almost no power.  A trademark needs to be distinctive to gain protections.

In general yes, if you are actively using the name companies won't name things the same.  But the fact that you're using a common word means YOU might be accused of those violations, particularly if your use overlaps theirs. There are many examples, but one that played out a few years ago was the Edge lawsuits. He did taketowns of smaller businesses claiming rights to the word against games like "Soul's Edge", the phrase "Cutting Edge',  and plain old "Edge", and gained confidence to the point of challenging EA's name 'Mirror's Edge'.  Four years and many million dollars later in a war through litigation, he lost all his trademarks because they had no secondary meaning. Sometimes it works out the other way. Microsoft had difficulty keeping trademarks on several names like Windows and Word back when they were much smaller, until they ultimately convinced judges they had enough secondary meaning in the public mind.

And you wrote this:

All the more reason you need to talk with a lawyer who knows the business law regarding games.  

I'm aware of the fact that the more a name is a Common word, the more difficult it is to protect it.

But this word almost perfectly fit the game, and it's also a "cool" word.

Of course I have many "backup" names, but this word would be perfect as the title of the game.

 I won't sue you if my game is called "edge" and your game is "dark edge", I just want to avoid being sued by others, and let the success of each other's game speak for theirself.

(Assuming there is no game named "exactly" like mine, which I'm pretty sure is not happening at the moment).

I get what you're trying to say, please correct me if I'm incorrect. You're not much concerned regarding people pirating and stealing your game, as it's virtually impossible now a days. Your main concern is, you releasing your game and later on down the line a big company comes out with a similar game, with the same title and they end up trademarks theirs? I can see where this would cause for some concern when unfamiliar with the laws, but I believe you don't fully understand the way trademark work. Being that I'm not a lawyer, it's hard for me to explain, but I would talk to an attorney or legal aid regarding the issue to get some insight. There are actually forums online that lawyers and legal aids answer these type of questions for free, sort of as a free promotion sort of thing. I would advise you to ask on there, so you can get a more direct answer to your question. 

15 hours ago, Linksys said:

I get what you're trying to say, please correct me if I'm incorrect. You're not much concerned regarding people pirating and stealing your game, as it's virtually impossible now a days. Your main concern is, you releasing your game and later on down the line a big company comes out with a similar game, with the same title and they end up trademarks theirs? I can see where this would cause for some concern when unfamiliar with the laws, but I believe you don't fully understand the way trademark work. Being that I'm not a lawyer, it's hard for me to explain, but I would talk to an attorney or legal aid regarding the issue to get some insight. There are actually forums online that lawyers and legal aids answer these type of questions for free, sort of as a free promotion sort of thing. I would advise you to ask on there, so you can get a more direct answer to your question. 

Yes, exactly this! 

Do you have any experience with those forums? Do you have One of them in particular to suggest? (I will talk to an attorney soon about this as well, but I think the more opinion I can hear, the better)

You'd need to share the actual names you're considering with a real live lawyer. 

During a free consult they might be able to answer "no" and tell you not to use a name, but in order to tell you "yes, that is safe" they need to do some research which you'll need to pay for. 

If you want to gain formal protections you will also want to pay them to help fill out the forms. Trademark forms are notoriously difficult for non-lawyers. They require specific captures from a live product, and they need to demonstrate certain features that are easy to misunderstand. 

The research and paperwork costs aren't expensive in the Grand Scheme of Business Costs, but if you're doing it as a hobby project the formal registrations and comprehensive trademark searches are probably outside your budget.  In that case you'll want to spend the money discussing the risks involved, and the costs in case you do get a legal notice.

30 minutes ago, frob said:

You'd need to share the actual names you're considering with a real live lawyer. 

During a free consult they might be able to answer "no" and tell you not to use a name, but in order to tell you "yes, that is safe" they need to do some research which you'll need to pay for. 

If you want to gain formal protections you will also want to pay them to help fill out the forms. Trademark forms are notoriously difficult for non-lawyers. They require specific captures from a live product, and they need to demonstrate certain features that are easy to misunderstand. 

The research and paperwork costs aren't expensive in the Grand Scheme of Business Costs, but if you're doing it as a hobby project the formal registrations and comprehensive trademark searches are probably outside your budget.  In that case you'll want to spend the money discussing the risks involved, and the costs in case you do get a legal notice.

The lawyer I talked to suggested to trademark the name without knowing the exact name of the game, I didn't even tell him it was a common word. (I don't blame him, as is it's work to protect people).

That's why I started wandering about what happens if I risk and go without trademarking the name.

Assuming that there isn't a game with the same or very similar name, It would seems that once I start selling my game, I should be fine and no one should be able to "steal" my brand, with or without "official" trademark. (I asked Jason for it, and he did exactly this, no trademark, just start selling the game).

My doubt is if it's worth to trademark the name "before" I start selling the name, just in case someone goes for the same or very similar name.

A lawyer will always suggests me to trademark, as there isn't a 100% sure way to avoid someone steal the name, but PRACTICALLY, how many possibilities there are? (considering that I own     www.GAMENAME-name.com and www.GAMENAMEthegame.com, and that the game will starts selling probably at the end of 2019, so 15 months from now)

You can't trademark it before you use it. That's one of the many mistakes people frequently make with trademark registration.

You can file for the intent to use the mark, but not the actual mark.  In order to register you need to actually use the mark in trade, the mark needs to be associated with both your products and your business, and the mark needs to have secondary meaning.  The registration needs to include a specimen from a live product as product users see it, not images from marketing or a web site or other uses.

If your product is big then yes, you should register your trademarks.  Enforcing those marks will cost a few hundred thousand dollars, so if you aren't big enough to invest that much money the registration is meaningless.