Sometimes a video game’s title is one of the game development company’s most important assets. Properly selected, secured and promoted, it may constitute a valuable source of income for a long time. Therefore, at an early stage of work on the game, it is worth making an appropriate application to the register, bearing in mind that in the case of trademarks, the principle of “first come, first served” applies. A well-thought-out strategy for selecting and registering a video game title can also save a lot of nerves and money after the game is launched on the market.
Trademark clearance: How to check if a game title is registrable and can be used safely
Trademark clearance should precede not only an application for registration of a game title as a trademark, but indeed the very choice of the intended title (even if the developer ultimately decides not to register it). Trademark clearance is research to determine whether the same or a similar title has already been registered as a trademark or is being used by an entity from the same or a similar sector for identical or similar goods or services. This research is usually carried out using professional trademark databases. Among other things, trademark clearance should look for potential conflicts with earlier:
- Registered trademarks
- Designations used on the market
- Company names.
Clearance will take into account conflicts not only with other game titles, but also with designations of other goods and services, especially if they are renowned. All of these can present an obstacle to registration of a new trademark. Therefore, it is worthwhile to entrust this examination to a professional, such as a patent attorney, who will not only review the databases, but above all assess potential conflicts and risks. This can save the developer from lengthy disputes, including costs of litigation and change of title, and, in worse cases, a spectrum of financial claims.
3D Realms, a studio that created a game called Ion Maiden, found out the risk of not undertaking such an examination. The choice of title caused the studio to become embroiled in a dispute with the heavy metal group Iron Maiden, which had registered its band name as a trademark. Among other things, that registration covered goods in Class 9, including computer games and video games. Therefore, in May 2019, the band filed a trademark infringement lawsuit in a federal court in California (Iron Maiden Holdings Ltd v 3D Realms Entertainment ApS). The musicians alleged that 3D Realms’ Ion Maiden game title was almost identical, visually and phonetically, to the Iron Maiden trademark, and produced a similar overall impression. Additionally, the game title and the trademark used by 3D Realms were registered for identical goods: computer and video games.