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I've been working on a video game for almost a year now and with release looming I'm starting to panic cause I don't have a trademark (but I do have a company).

I really don't want to have to push release back a year to wait for the trademark process... Can I get around this and just release (safely) somehow?

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    \$\begingroup\$ define "release safely". What scenario exactly do you want to be protected against? Anyway, this is likely more of a question for law.stackexchange.com \$\endgroup\$ – Philipp Jul 6 '17 at 16:58
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    \$\begingroup\$ While the answers below correctly address the specific question of releasing without a trademark - you also need to make sure you do a trademark search to ensure you aren't going to encroach on someone else's registered trademark in the market(s) you're releasing to. \$\endgroup\$ – HorusKol Jul 7 '17 at 5:34
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You should release.

A trademark allows you to protect a name. You're more likely worried about your game, its concepts and art assets. You likely haven't spent a lot of time building up a brand, getting lots of following for your game, so people know it by name. If you had, you likely wouldn't be so worried about releasing without a trademark.

However, don't think that releasing without a trademark hurts you. In fact, it's likely to be beneficial:

Assuming your name doesn’t violate any existing trademarks, you gain “common law” trademark rights the minute you use it in commerce, regardless of whether it has been registered by the USPTO. Furthermore, registering a trademark with the USPTO requires you to prove that you’ve used the name in commerce – which will be hard to do if you’ve been keeping it under wraps.

Releasing your game and using its name grants you protections you don't have if you keep your game unreleased.

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    \$\begingroup\$ I'll add to that that applying for a trademark process in every single market you're going to be active in is not viable for very small indie developers (unless the publisher takes care of it). \$\endgroup\$ – Peter - Unban Robert Harvey Jul 6 '17 at 17:40
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    \$\begingroup\$ Just put the TM symbol in there (USA), which means you are claiming it as a trademark. Once it's officially registered, you get to upgrade to the ® symbol. A lot of brands do this because it can take longer to get the registered trademark than it does to launch a new product. (And a lot of places come up with the brand name toward the end of product development, so they have a month or two before launch.) The Xbox 360 load screen had a TM for years; Microsoft updated to the registered symbol with a console update after it was officially registered. \$\endgroup\$ – ps2goat Jul 7 '17 at 22:05
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There are different kinds of trademark, normal (™) and registered (®). Registering a trademark is overkill for most cases. Even huge studio's don't always do it.

Nintendo not registering trademarks

A normal trademark does not need a registration with an authority. So, just put a ™ after the name and you should (as far as I know) be fine.

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    \$\begingroup\$ (IANAL. Everything I know about law is from the internet, so it's probably all wrong.) Technically, you don't even need to use the TM. While I doubt that it'll hurt, all it does is explicitly say, this is a trade mark (i.e. a mark used to identify something being traded/sold). If you use it as a brand or product name, it's still a trade mark -- I can sell my new type of bread as Thebreadwhosenameisabunchofwords, rather than being required to put a ™ after every instance, and it's clearly still a trade mark. That said, I'd still put it, if only because that beautiful name must be protected! \$\endgroup\$ – Fund Monica's Lawsuit Jul 7 '17 at 1:40
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    \$\begingroup\$ Putting it makes you look like you haven't kept up with branding trends since the 80s or early 90s. The TM sign simply is not used anymore by brands that want to appear modern. \$\endgroup\$ – R.. Jul 7 '17 at 2:55
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    \$\begingroup\$ Deep in the caribean... Mêlée Island™ \$\endgroup\$ – xDaizu Jul 7 '17 at 8:31
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    \$\begingroup\$ @R.. Uhm, how did you conclude that? The Nintendo Switch logo has a ™ too just to name a random example... \$\endgroup\$ – stommestack Jul 7 '17 at 9:00
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    \$\begingroup\$ @R.. Modern enough? \$\endgroup\$ – Sneftel Jul 8 '17 at 21:04
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As someone who has been through this with my own software, I would strongly recommend that you register your trademark ASAP with the USPTO.

Our product has been out for 20+ years, and just recently a large 'industry disrupter' came out with a product that used our name. This immediately put us in league with them, in our prospective clients' eyes, and basically killed our goodwill to a large chunk of our industry.

Over the years, we have also contested (and lost) to other groups using our name.

At the end of the day, your main asset is your name & reputation. Software gets upgraded, replaced, dumped... But your product name is how the world knows you, and what will hopefully get your bought out down the road (if that is your goal).

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  • \$\begingroup\$ Was the name a generic term or an original name? Did you use a ™ sign? \$\endgroup\$ – stommestack Jul 8 '17 at 11:29
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    \$\begingroup\$ How should the release be handled in connection to the trademark? That's a significant portion of the question not covered in this answer. \$\endgroup\$ – doppelgreener Jul 8 '17 at 13:19
  • \$\begingroup\$ Jop, our name was 2 common words that we strung together as 1. Since we never registered the trademark, we really didn't have a good case. We could have forced our competitor to change their name, but wouldn't have gotten any restitution for what they did to our reputation. We ended up doing nothing, as we couldn't afford to fight it. Without the registration, you are limited in what you can sue for. Jim \$\endgroup\$ – Jim Jul 16 '17 at 18:15
  • \$\begingroup\$ doppel, I'm not sure I'm the best person to answer that, as we never registered our name. If we were to do it again, we would pay the $300 or so USPTO registration fee first and apply online before releasing the software. This way, you're protected from day 1. Also, make sure you search the existing trademarks, including closely related words. For example, MyCoolSoftware, my cool software, mykoolsoftware, etc. Any existing registree might have a case against you if you infringe on their name. HTH, Jim \$\endgroup\$ – Jim Jul 16 '17 at 18:21
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first off, IANAL so be aware. That said...

"Safely" is a relative term. I mean, the main thing a registered trademark protects against is someone scooping up your game's name, and even then you're only "protected" in the sense that you could win a lawsuit; someone could still try to steal your game's name, and then you'd have to sue them.

That's not super likely to happen as long as you've done your due diligence to make sure nobody else is already using that name. For example you can lookup existing trademarks here. But whether "not super likely" is safe enough for you is, well, relative. I mean, it certainly does happen occasionally.

Either way I would apply for a trademark right away. That's whether or not you release the game before the registration process is finished. The name isn't really valuable yet, but could become so if your game is successful, so you'll want a registered trademark by then.

Also, this related question has more information you should read.

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    \$\begingroup\$ I think this is the first time ever I've seen written the expression "super likely". It was... weird. \$\endgroup\$ – xDaizu Jul 7 '17 at 8:33
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    \$\begingroup\$ I write the same way I talk. Interestingly, that makes my speech more formal than most people, while my writing is less formal. \$\endgroup\$ – jhocking Jul 7 '17 at 13:18

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