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Game lawyer Zachary Strebeck discusses some of the bad things that can happen if you don’t do a proper trademark search before publishing your game.
In the rush to get a game developed and published, a lot of important business steps are often overlooked. Developers don’t get agreements signed with their contractors, they don’t copyright their games soon enough, and other issues.
One of the biggest issues? Failing to do a proper trademark clearance search before starting their company or publishing their game.
You might be asking yourself, “What could go wrong?” Of course, the answer is a lot of things, some of which could potentially seriously hurt your business. Here’s a few:
A cease and desist letter doesn’t technically have any legal weight, but it certainly can put a scare into the developer that receives it. These are usually written by a law firm and contain allegations of trademark infringement. Often, they quote a bunch of law and list various federal trademark registration numbers.
The nice ones end with “we trust that this matter can be resolved quickly and without resorting to legal action.” Mean ones tend to threaten litigation right away.
It’s understandable why these can frighten developers – they’re SUPPOSED to be frightening. Often, indie devs don’t have immediate access to a legal team to evaluate the claims in the letter, let alone competently respond to them. If you want to read more about cease and desist letters and how to respond to them, check out my post on the Kickstarter Lessons blog.
A cease and desist letter is usually a good first step to take when an attorney deals with potential infringement. They’re not required, though, and sometimes attorneys skip right to takedown procedures in the cases of online app stores.
If you fail to properly clear your game title or company name and publish a game on the Google Play store that is confusingly similar to another, they may use the store’s takedown procedures to get your app taken off in whatever jurisdictions they have rights.
Similarly, your social media accounts can be either deleted or disabled. You may be subject to a UDRP proceeding over an infringing domain name. There are a number of methods available to a trademark holder that can really ruin an indie developer’s day.
This doesn’t have anything to do with the post, I just really like Chihuahuas.
You may still be wondering why this is such a big deal. Well, there’s a few reasons:
You probably spent a bunch of time and money generating business goodwill for either your game or your company name before your game’s release (if you’re doing it right)
You’re relying on the game existing on the App Store or Play Store in order to exploit the game for revenue
You probably don’t want to have to pay someone like me to respond to the letter, let alone fight against litigation or argue with an app store on your behalf
These are all things that can potentially be very expensive! They are also mostly avoidable (though not completely avoidable) with the proper clearance work up front.
My suggestion? Begin your relationship with an attorney before you get to the point of receiving a C&D letter. At the very least, look around and vet one that you can contact in case something like this happens. Do a consultation with one (usually free) to get a handle on what legal issues you could potentially be facing. Grab a copy of my ebooks if you just want to read about them.
An attorney can assist you in a trademark clearance search prior to advertising your company or game. This can eliminate a lot of potential issues down the road. For assistance with federal trademark clearance and registration, contact a game lawyer for a free consultation.
Thanks to photographers Sylwia Bartyzel and Angelina Litvin for providing photos via Unsplash.
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