Top 3 Intellectual Property Mistakes | Casual Game Revolution

Top 3 Intellectual Property Mistakes

Crumpled Paper
This article was originally published in: 

Join the hunt for evil creatures in Flying Frog's new deck-building card game, Dark Gothic. Plus: a behind-the-scenes look at Geek & Sundry's hit video series TableTop, 12 rogue gaming behaviors to avoid, a look back at how Apples to Apples came to be, protecting your game from intellectual property disputes, and reviews of many great games, including Spiel des Jahres winner Camel Up. More »

Publishing board games brings the risk of possible disputes over intellectual property (see this article for an in-depth look at this topic). New companies often make mistakes — here are the top 3 most common intellectual property mistakes I have seen as an attorney at law.

1. Using a descriptive product name.

Some words or phrases make stronger trademarks than others. From weakest to strongest, you have:

  • Generic terms — these can’t be protected as trademarks at all.
  • Descriptive terms — as you might expect, these describe some element or feature of the product. “Cheesy” might be a descriptive term for pizza, for instance. These terms are given little or no protection as trademarks.
  • Suggestive terms — A suggestive trademark relates to a quality or feature of the product, but doesn’t come right out and say it. Think “Chicken of the Sea” for tuna. Suggestive marks tend to be fairly strong.Fanciful or Arbitrary terms — The strongest of them all. “Arbitrary” applies to terms that have nothing to do with the goods (such as “Apple” for computers). “Fanciful” marks are simply words that are entirely made up.

2. Using geographic terms as trademarks.

Either they’re geographically descriptive, in which case all of your local competitors can also say that their product is from the same place, or they’re geographically misdescriptive, meaning they use the name of one place but they’re really from somewhere else. In either case, you’ve got a problem. Try to think of a name that’s more creative than “San Diego Games.”

3. Not honoring another company’s trade name.

This is the worst mistake of all. Most creators don’t recognize that anyone who’s used that trade name (or a confusingly similar name) on the same or similar products has superior rights — even if they never even thought of registering their name as a trademark. A conflicting prior use in commerce is the single biggest challenge for a potential trademark. Just because you searched Google and doesn’t mean you’ve found every potential conflict. Depending on your trade name, product, or service, and how you plan to use it, a greater level of due diligence may be required. Be careful how you search, and when in doubt (and even if you’re not in doubt), hire a professional.

DISCLAIMER: This article is for information purposes only — it is not legal advice and should not be relied upon in such a manner. Please consult with a lawyer.