Hello I'd like to get some advice because we're developing a game called "Dungeon Boss Fight" and we recently discovered that a game named "Dungeon Boss" is already available in mobile by Bigfish Games, the same place we are going to release our game. I've used this website (http://tmsearch.uspto.gov) and found that there isn't a trademark for "Dungeon Boss". Now is it safe to release our game with the current title or should we change it? Or should we trademark our title "Dungeon Boss Fight" and hope for the best? The other game came out 5 years ago btw.
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\$\begingroup\$ this should be moved to law.stackexchange.com. But if you ask me, if that's the case, all those clash of clans copies would be gone by now lol \$\endgroup\$– YeetlordTheFirstCommented Nov 16, 2017 at 11:29
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1\$\begingroup\$ They can always sue you for anything. If they have more money that you do to defend, even if you're in your rights, you'll lose. That's a thing to consider. The best advice we can give you is "consult with a lawyer before you release your game". \$\endgroup\$– Vaillancourt ♦Commented Nov 16, 2017 at 11:38
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\$\begingroup\$ You'll want to put in the few hundred bucks to talk to a lawyer about this one. As a more general guideline though, if your game doesn't exhibit similar game play or enemies you'd likely be fine. On the other hand copyright law (a simplification) rides on the idea that if your game is taking money that they would get, business that they would have, then it's an infringement of their copy right. It doesn't matter if the name's the same or not at that point. If the name is the only thing similar including cover art, etc. you're likely to be fine, but should talk to a copyright lawyer. \$\endgroup\$– Joshua HedgesCommented Nov 17, 2017 at 14:59
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Trademark law doesn't offer a yes/no answer in this case.
Can they sue? Yes. Can they win? Yes.
Will they sue? Only one way to find out. Will they win? Only one way to find out.
Will it cost you money if they sue? Yes. Will it cost them money if they sue? Yes.
Here's a case of how far some companies go to "protect" their trademarks.
In my personal opinion, Dungeon Boss Fight is not a great name anyway, so just find a better name.
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\$\begingroup\$ I notice that some of the developers of Dungeon Boss are also active in gamedev discussions on Twitter (I came across a great thread by a designer on that game just last night in fact, talking about ethical design of microtransactions), so a potential "one (more) way to find out" would be to reach out and talk to them as fellow developers. They'll likely advise you to change the proposed name, so you're not eating into each others' search hits, but who knows, they might even have some suggestions for you. ;) \$\endgroup\$– DMGregory ♦Commented Nov 16, 2017 at 13:37