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Five common questions about trademark protection
by Zachary Strebeck on 02/05/14 07:01:00 am   Featured Blogs

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The following blog post, unless otherwise noted, was written by a member of Gamasutras community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 
However, many inaccuracies and incorrect assumptions have been thrown about

With the recent news aboutKing’s Candy Crush trademarks, game developers and fans have been talkingtrademarka lot lately. However, many inaccuracies and incorrect assumptions have been thrown about in the ensuing flurry. I’ve gathered here fivequestions about trademark that seem to come up a lot, with (hopefully) simple answers.

Do I have to register my trademark?

No, simply using your mark in commerce is enough to establish rights in that mark. However, certain remedies and rights areunavailable without registration. Additionally, registering the mark gives “constructive” notice to all other would-be users of that mark.

Can you trademark a generic word like “candy”?

This is kind of a trick question, but here goes. No, you cannot register a mark for the word “candy,” or some other generic word, if it is used in connection with that product. The famous example is the word Apple. If you have an apple-selling company or brand, you would not be eligible for trademark rights. However, using the word in an arbitrary way, such as to describe a computer brand, would be registrable. Seemy post on trademark distinctivenessfor more info.

If the trademark is approved and published, is it final?

The USPTO examines the mark and makes a determination. If they deem it registrable, then they publish the mark for opposition in the Federal Register. The whole process is public and can be viewed by anyone. The public then has a short period of time after this publication to oppose the mark. The opposition must be filed with the USPTO, and will then be considered by the trademark office prior to the mark being officially “registered.”

One famous opposition in game development isBlizzard’s opposition to Valve’s registrationof the DOTA mark. It’s not over then, however. For the first five years, a mark is still open to being contested. After that five year period, the trademark owner can then file for “incontestibility,” meaning that it canno longer be opposed on its face.

How long is a trademark valid?

Trademark protection is indefinite, as long as theproper trademark renewals are filedin a timely manner.

What if someone registers a trademark I’m already using?

First of all, an opposition would be the appropriate move to make, in many cases. This answer is a little complicated, so check outthis articlefor a (very) detailed look at the options.

What happens if a trademark owner doesn’t police their mark?

Unlike copyright, which allows for pretty broad licensing power, trademark owners will generally lose their exclusive rights if they do not properly police their mark.

Unlike copyright, which allows for pretty broad licensing power, trademark owners will generally lose their exclusive rights if they do not properly police their mark. There are several ways to do this. Licensing the use of the mark without proper quality controls is one way. Allowing others to use the mark so that it loses its distinctiveness is another way (called dilution by blurring or tarnishment).

Another issue is “genericide,” which means that the trademarked term has become generic. “Aspirin” is an example of this. There are other ways that failure to police a mark can result in rights going away, socheck out this pagefor more info.

Hopefully this clears up some common questions about trademark law. If there are any more, please leave them in the comments and I will address them on the blog. If you need help evaluating or registering a mark for you project,contact an attorneyfor advice.


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